www.defra.gov.uk
Environmental Permitting Guidance
Core guidance
For the Environmental Permitting (England and
Wales) Regulations 2010
Last revised: March 2013
© Crown copyright 2013
You may re-use this information (not including logos) free of charge in any format or
medium, under the terms of the Open Government Licence. To view this licence, visit
www.nationalarchives.gov.uk/doc/open-government-licence/ or write to the Information
Policy Team, The National Archives, Kew, London TW9 4DU, or e-mail:
psi@nationalarchives.gsi.gov.uk
This document/publication is also available on our website at:
www.defra.gov.uk/environment/quality/permitting/
Any enquiries regarding this document/publication should be sent to us at:
Defra, Environmental Permitting Programme
5B Ergon House
Horseferry Road
London SW1P 2AL
Tel: 020 7238 5097
Email: eppadministrator@defra.gsi.gov.uk
Revision of the Guidance
This publication is updated from time to time with new or amended guidance. The table
below is an index to these changes.
Date of
amendment
Chapter/
Nature of amendment
paragraph where - what paragraphs have been inserted, deleted, or
amendment can
amended
be found
- what subject matter is covered by the amendment
24/02/09
4.13
Additional guidance
Footnotes
Updated hyperlinks
02/11/09
Throughout
General amendments and updates issued as version
2.0
05/03/10
Throughout
Updated to reflect EP Regulations 2010
12/03/10
Throughout
Typographical amendments
Sep 2011
Changes to reflect the EO-RSR Exemptions, as detailed below
March 2012
Changes to reflect EP amending Regulations 2011 and 2012 and, other
amendments
March 2013
Changes to reflect: EP amending Regulations 2013 (transposition of the
industrial emissions Directive); the emergence of Natural Resources Wales;
and a commitment by the Environment Agency to determine permit
applications within 13 weeks, subject to some exceptions
Contents
1. Summary ...................................................................................................................... 1 About this guidance .......................................................................................................... 1 2. Introduction ................................................................................................................... 3 What is environmental permitting? ................................................................................... 3 The scope of the Regime ................................................................................................. 3 The legal framework ......................................................................................................... 3 How European Environmental Directive and national policy requirements are delivered . 5 3. What facilities require an Environmental Permit? ......................................................... 8 The different classes of regulated facility and their related exempt facilities .................. 10 A single permit ............................................................................................................... 14 4. The Regulator ............................................................................................................. 16 The regulator .................................................................................................................. 16 A single regulator for each site ....................................................................................... 17 5. Environmental Permit Applications ............................................................................. 19 The operator ................................................................................................................... 19 Pre-application discussions ............................................................................................ 20 Using existing data ......................................................................................................... 20 Timing of applications..................................................................................................... 21 Novel applications .......................................................................................................... 21 Planning and environmental permit applications ............................................................ 21 Transitional arrangements.............................................................................................. 22 Consolidation into a single permit .................................................................................. 23 6. Application Procedures ............................................................................................... 24 Applications .................................................................................................................... 24 Specific procedures for different types of applications ................................................... 29 Determination by the Secretary of State or the Welsh Ministers .................................... 32 7. Determining Applications ............................................................................................ 34 Determination ................................................................................................................. 34 Determining different application types .......................................................................... 35 8. Standard Permits ........................................................................................................ 40 Standard rules ................................................................................................................ 40 Developing standard rules.............................................................................................. 40 Standard permits ............................................................................................................ 40 Revision and revocation of standard rules ..................................................................... 41 9. Operator Competence ................................................................................................ 42 Operator competence..................................................................................................... 42 Management systems .................................................................................................... 42 Technical competence ................................................................................................... 43 Poor record of compliance with regulatory requirements ............................................... 45 Financial competence .................................................................................................... 46 Maintaining competence ................................................................................................ 46 10. Consultation and public participation....................................................................... 47 Consulting the public ...................................................................................................... 47 11. Compliance Assessment, Enforcement and Review ............................................... 49 Compliance assessment ................................................................................................ 49 Enforcement ................................................................................................................... 50 Ongoing review .............................................................................................................. 53 12. Charging ................................................................................................................. 54 Charges for applications................................................................................................. 54 Subsistence .................................................................................................................... 54 13. Appeals ................................................................................................................... 55 Appeal procedures ......................................................................................................... 55 Appeal decisions ............................................................................................................ 57 14. Public registers and information .............................................................................. 59 Public registers ............................................................................................................... 59 Other information legislation........................................................................................... 63 15. Exempt facilities ...................................................................................................... 64 Registration of exempt facilities ...................................................................................... 64 Annex 1: Connections with other legislation ...................................................................... 65 Regulators ...................................................................................................................... 65 Other Relevant Regimes ................................................................................................ 65 Permitting Considerations .............................................................................................. 68 Annex 2: Summary of the requirements for different activities, installations and operations
........................................................................................................................................... 72 1. Summary
About this guidance
1.1
This guidance aims to provide comprehensive help for those operating, regulating
or interested in facilities 1 that are covered by the Environmental Permitting (England and
Wales) Regulations 2010 SI 2010/675 (as amended 2 (‘the Regulations’). It describes the
main provisions of the Regulations and sets out the views of the Secretaries of State for
Environment Food and Rural Affairs and for Energy and Climate Change and the Welsh
Ministers on how the Regulations should be applied and how particular terms should be
interpreted in England and Wales. It also explains where to go for more help.
1.2
This guidance is an updated version of the guidance produced for the
Environmental Permitting (England and Wales) Regulations 2007 (SI 2007/3538). This
guidance is freely available in Adobe Acrobat format. This can be searched for key terms
for ease of navigation. The contents page of this document should also help the reader to
quickly find guidance on a wide range of issues. A printed copy of the guidance is
available on request 3 .
1.3
A full list of the EP Guidance is available from the Defra website 4 .
This guidance is underpinned by further regulatory and technical guidance explaining
aspects of the Regime in more detail. This is illustrated in Figure 1.
1
The term ‘facility’ should be read to include activities and operations, unless otherwise stated, wherever it
appears in the guidance.
2
The Environmental Permitting (England and Wales) (Amendment) Regulations 2010 SI 2010/676, the
Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2010 (SI 2010/2172); the
Waste (England and Wales) Regulations 2011 (SI 2011/988); the Environmental Permitting (England and
Wales) (Amendment) Regulations 2011 (SI 2011/2043); the Environmental Permitting (England and Wales)
(Amendment) (No. 2) Regulations 2011 (SI 2011/2933); the Environmental Permitting (England and Wales)
(Amendment) Regulations 2012; the Environmental Permitting (England and Wales) (Amendment)
Regulations 2013; and the imminent Environmental Permitting (England and Wales) (Amendment No 2)
Regulations 2013.
3
Available from: eppadministrator@defra.gsi.gov.uk
4
Available at: http://archive.defra.gov.uk/environment/policy/permits/guidance.htm#ep
1
Figure 1 Illustration of guidance relationships
Directive
Guidance
EP Core
Guidance
The Local
Authority
Manual
Environment Agency
Environment Agency Technical
Local Authority
Technical
1.4
The Environment Agency should continue to develop and maintain its regulatory
and technical guidance. In so doing it should continue to work closely with Defra, DECC,
the Welsh Government and others.
1.5
The Environment Agency's guidance should be made widely available so that the
Regime is implemented in an open and transparent way. Environment Agency guidance
on the Regime can be found on its website at www.environment-agency.gov.uk/epr.
1.6
For local authority-regulated facilities, the General Guidance Manual on Policy and
Procedure for A(2) and B Installations ‘the Manual’, can be found on the Defra website at
www.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm
1.7
To ensure this guidance is current and up to date, from time to time this guidance
will be updated. Where made, revisions can be found in the ‘Revision of Guidance’ section
at the front of the document.
1.8
This guidance document is compliant with the Code of Practice on Guidance on
Regulation 5 . If you feel this guidance breaches the code, or notice any inaccuracies within
the guidance, please contact the EPP team at: eppadministrator@defra.gsi.gov.uk.
5
See Environmental Permitting Guidance and Glossary Chapter 3:
2
2. Introduction
This chapter explains what the environmental permitting regime is and describes the
regime’s law and guidance.
What is environmental permitting?
2.1
Some facilities could harm the environment or human health 6 unless they are
controlled. The environmental permitting regime (‘the regime’) requires operators to obtain
permits for some facilities, to register others as exempt and provides for ongoing
supervision by regulators. The aim of the regime is to:
•
protect the environment so that statutory and Government policy environmental
targets and outcomes are achieved
•
deliver permitting and compliance with permits and certain environmental targets
effectively and efficiently in a way that provides increased clarity and minimises the
administrative burden on both the regulator and the operators
•
encourage regulators to promote best practice in the operation of facilities
•
continue to fully implement European legislation.
The scope of the regime
2.2
The regime covers facilities previously regulated under the Pollution Prevention and
Control Regulations 2000 7 , and Waste Management Licensing and exemptions schemes 8
(as superseded by the Environmental Permitting (England and Wales) Regulations 2007),
some parts of the Water Resources Act 1991, the Radioactive Substances Act 1993 and
the Groundwater Regulations 2009 9 .
2.3
The regime extends to England and Wales. It also covers the adjacent sea as far as
the seaward boundary of the territorial sea.
The legal framework
2.4
The regime is set out in the Regulations and described in this accompanying
guidance. This guidance explains the concepts used in the Regulations and gives
guidance as to what is covered by the regime and how it will work in practice. This
guidance only explains the main provisions of the Regulations 10 . The Regulations set out
the following:
6
The term ‘protect the environment’ should be read to include the environment and human health, wherever
it occurs in the guidance.
7
SI 2000/1973.
8
See the Environmental Protection Act 1990, Part 2 and the Waste Management Licensing Regulations
1994, SI 1994/1056.
9
SI 2009/2902.
10
The Regulations can be downloaded free of charge from
http://www.legislation.gov.uk/uksi/2010/676/contents/made (this is the version as originally amended –
subsequent amending Regulations can also be found on this site).
3
•
the facilities that need environmental permits or need to be registered as exempt
•
the process for registering exempt facilities
•
how to apply for and determine permit applications
•
requirements that environmental permits contain conditions to protect the
environment as required by directives and, where applicable, national policy
•
how environmental permits can be changed and ultimately be surrendered
•
a simplified permitting system called standard rules
•
compliance obligations backed up by enforcement powers and offences
•
provisions for public participation in the permitting process
•
the powers and functions of regulators, the Secretary of State and the Welsh
Ministers
•
a simple transition to the new regime, and
•
provisions for appeals against permitting decisions.
2.5
The principal offences under the Regulations are operating a regulated facility
without a permit, causing or knowingly permitting a water discharge activity or groundwater
activity without a permit, and failing to comply with a permit or an enforcement related
notice.
2.6
Subject to legal requirements, the Secretary of State and the Welsh Ministers
expect regulators to apply the Regulations in proportion to the environmental risk 11
presented by the operation of the facility.
2.7
The nature and extent of the regulatory effort should be appropriate and
proportionate to the risk posed by the operation of the facilities, the impact of that
operation and the operator's performance in mitigating the risks and impacts. The
regulator's effort should be concentrated on achieving the desired environmental
outcomes. This approach should make the most effective use of the regulator's resources.
2.8
Regulators should exercise their functions in an open and transparent manner.
2.9
The Natural Resources Body for Wales (Establishment) Order 2012 established a
new statutory body, the Natural Resources Body for Wales, for the management of Wales'
natural resources. From the 1st April 2013, for the purposes of environmental permitting,
the Welsh devolved functions of the Environment Agency will be exercisable by the
Natural Resources Body for Wales. For the purposes of this Guidance (with the exception
of paragraph A.1.2) references to the Environment Agency should, from that date
onwards, be read as references to the Natural Resources Body for Wales.
11
The term risk should be read to include hazard, wherever it occurs in the guidance.
4
How European Environmental Directive and national policy
requirements are delivered
2.10 European Directives (directives) and international agreements contain a variety of
requirements, some of which can be delivered through a permitting and compliance
system and some of which are delivered in other ways. The majority of environmental
quality and specific permitting standards and other related requirements for environmental
and human health protection come from directives. The Regulations ensure that those
directives and national policy requirements and outcomes that can be delivered through a
permitting and compliance system are delivered by the Regime.
2.11 The Regulations place duties on regulators to exercise their permit-related functions
to deliver the obligations and outcomes required by the relevant directives and, in some
cases, national policy. In practice, this means that the regulator will ensure, where a permit
is granted, that permit conditions achieve the objectives and intended outcomes of any of
the directives or national policy which apply. The Regulations also give regulators powers
in relation to their permit-related functions. Government policy in relation to these powers
is contained in the guidance series described at paragraph 2.17.
2.12 The Schedules to the Regulations generally identify particular requirements,
(usually Article by Article, in the case of directives), which must be delivered through the
permitting system. In some cases requirements to be delivered through the permitting
system are located in other legislation 12 . Each directive or policy area covered by the
Regime has a specific Schedule:
•
Industrial Emissions Directive Chapter II (Integrated Pollution Prevention and
Control)
Schedules 7 and 7A – Part A installations
•
Part B installations and Part B mobile plant
Schedule 8 – Part B installations and Part B mobile plant
•
Waste Framework Directive
Schedule 9 – Waste operations
•
Landfill Directive
Schedule 10 – Landfill
•
End-of Life Vehicles Directive
Schedule 11 – Waste motor vehicles
•
Waste Electrical and Electronic Equipment Directive
Schedule 12 – Waste electrical and electronic equipment
•
Industrial Emissions Directive Chapter IV
Schedules 13 and 13A – Waste incineration
•
Industrial Emissions Directive Chapter V
12
For example, the Water Environment (Water Framework Directive) Regulations 2003 SI No. 3242. For
more information on this see the Guidance on Water Discharge Activities.
5
Schedule 14 – solvent emission activities
•
Industrial Emissions Directive Chapter III
Schedules 15 and 15A – Large combustion plants
•
Asbestos Directive
Schedule 16 – Asbestos
•
Industrial Emissions Directive Chapter VI
Schedules 17 and 17A – Titanium dioxide
•
Petrol Vapour Recovery Directive
Schedule 18 – Petrol vapour recovery
•
Batteries Directive
Schedule 19 – Waste batteries and accumulators
•
Mining Waste Directive
Schedule 20 – Mining waste operations
•
Water discharge activities
Schedule 21 – Water discharge activities
•
Groundwater activities
Schedule 22 – Groundwater activities
•
Radioactive substances activities
Schedule 23 – Radioactive substances activities
2.13 Where a facility falls under more than one Schedule then each set of Schedule
requirements must be met. For example, in England, most 13 waste incinerators (in Wales
all incinerators) must meet the requirements of chapters II and IV of the industrial
emissions Directive and of the revised Waste Framework Directive. Schedules 7/7A,
13/13A and 21 contain the provisions that relate to most incinerators. This is because the
subject matter of various European Directives and national policy areas overlaps to a
certain extent.
Guidance
2.14 More detailed guidance on the requirements of each directive or policy area,
including the text of each Schedule and, where applicable, directive, can be found in the
documents listed in the environmental permitting list of guidance and glossary and Code of
Practice on Guidance 14 .
13
The exceptions are those few with a capacity below the threshold for subjection to Chapter II of the
industrial emissions Directive and so not subject to Schedule 7/7A. They still need to meet Schedules 13/13A
and 21.
14
Available at http://archive.defra.gov.uk/environment/policy/permits/guidance.htm#ep
6
2.15 The environmental permitting regime does not currently transpose all the European
Directives relevant to regulated facilities. Annex 1 to this document outlines the
connections with other legislation.
2.16 A separate glossary of terms is available 15 . The glossary briefly explains the
meaning of many words, phrases and acronyms used in the Regulations and directives.
2.17 Separate Government guidance is not being produced for the Asbestos, Petrol
Vapour and Titanium Dioxide Directives. Guidance on the relevant requirements can be
found in the General Guidance Manual for the Asbestos and Petrol Vapour Directives and
in technical guidance produced by the Environment Agency for the Titanium Dioxide
Directives.
2.18 References in this guidance to exemptions do not apply in relation to radioactive
substances activities, unless specifically indicated.
15
Available at http://archive.defra.gov.uk/environment/policy/permits/documents/ep2010guidelist.pdf
7
3. What facilities require an environmental
permit?
This chapter describes how the Regulations identify those facilities that require an
environmental permit (and those that do not). It sets out the circumstances in which a
single permit can cover a number of regulated facilities.
3.1
The Regulations specify which facilities require an environmental permit and
provide that some facilities can be exempt from those requirements providing general rules
are laid down for each type of exempt activity, and the operation is registered with the
relevant registration authority. Exemptions provide a lighter touch form of regulation for
small scale low risk waste operations and aim to encourage waste recycling and recovery.
The facilities that require a permit are described collectively as ‘regulated facilities’. There
are seven different kinds of regulated facility and each is known as a ‘class’ of regulated
facility.
3.2
In relation to waste operations, certain operations regulated under other regimes,
are described as ‘excluded waste operations’ and these are not regulated facilities.
3.3
Some facilities may be exempt from the requirement for an environmental permit,
subject to compliance with certain requirements including registration. When registered,
these facilities are known as exempt facilities and are not then regulated facilities.
3.4
In relation to radioactive substances activities, certain activities do not require a
permit even though they are not exempt facilities. The term ‘exempt’ is used differently in
relation to radioactive substances activities, in that registration is not required.
3.5
The nine classes of regulated facility are:
•
an installation (where activities listed in Schedule 1 to the Regulations, and any
directly associated activities are carried on – see Installations) (regulation 8 (1)(a))
•
mobile plant (used to carry on either one of the Schedule 1 activities or a waste
operation – see Mobile plant) (regulation 8(1)(b))
•
a waste operation (see Waste operation) (regulation 8(1)(c))
•
a mining waste operation (see Mining waste operations) (regulation 8(1)(d))
•
a radioactive substances activity (see Radioactive substances activities)
•
a water discharge activity (see Water discharge activities)
•
a groundwater activity (see Groundwater activities)
•
a small waste incineration plant (see Small waste incineration plant)
•
a solvent emission activity (see solvent emission activity)
8
3.6
Some regulated facilities may be ‘carried on as part of the operation of a regulated
facility of another class’. These are: waste operations, mining waste operations, water
discharge activities, groundwater activities, small waste incineration plant and solvent
emission activities (regulation 8(4)). Figure 2 illustrates a site containing a number of
regulated facilities of different classes, some are shown as carried on as part of the
operation of another, whilst others are ‘stand alone’.
Figure 2 Example of regulated facilities carried on at a site
.
Site
Radioactive
Substances
Installation
Waste
Water
Discharge
Waste Operation
Groundwater
Water Discharge
Stand Alone
Water Discharge
3.7
Some provisions of the Regulations apply to these classes of regulated facility
differently according to whether or not they are carried on as part of the operation of
another regulated facility. For example, any part of a permit which authorises a standalone water discharge activity may be surrendered by notification, whereas any part of a
permit which authorises a water discharge activity that is carried on as part of the
operation of another regulated facility (such as an installation), can only be surrendered by
application. Annex 2 illustrates the principal procedural differences applying to different
classes and descriptions of facility, contained in the Regulations.
3.8
More detailed descriptions of the different classes of regulated facility are given in
paragraphs 3.11 to 3.39 below.
3.9
There may be more than one regulated facility on the same site. This will be the
case where a regulated facility is carried on as part of the operation of another regulated
facility, but may also occur in other circumstances. In such cases there are arrangements
in the Regulations to allow all such facilities to be regulated by the same regulator (see
A single regulator for each site) and to allow, in many cases, for a single permit (see A
single permit).
9
3.10 For mining waste operations and waste operations affected by the review of waste
exemptions 16 , the requirement for a permit is subject to transitional provisions that will end
on 1 October 2013. For information on this see the Guidance on the Mining Waste
Directive and on Exempt Waste Operations 17 , respectively.
The different classes of regulated facility and their related exempt
facilities
Installations
3.11 Schedule 1, Part 2 to the Regulations 18 provides a list of specified activities. Certain
exclusions from the list and other rules for interpretation are contained in Schedule 1, Part
1.
3.12 An installation is made up of any stationary technical unit where one or more
activities listed in Schedule 1 and any directly associated activities are carried on
(Schedule 1, Part 1, paragraph 1).
3.13 Further guidance on the meaning of ‘installation’, ‘stationary technical unit’ and
‘directly associated activity’ is provided, with detailed examples, in the guidance on Part A
Installations 19 .
Waste operations
3.14 A waste operation is defined in regulation 2 by reference to the recovery and
disposal operations in the revised Waste Framework Directive 20 . Any recovery or disposal
of waste is a waste operation. Some of the larger waste operations are carried on as part
of the operation of an installation (see Installations above). Further guidance on the
meaning of waste operation is provided in the revised Waste Framework Directive
guidance. Some waste operations not carried on at an installation, are excluded from the
Regime because there is already appropriate environmental regulation under other
regimes.
3.15 These excluded operations are those that are carried on under a FEPA permit 21 or
the disposal or recovery of sludges which are not to be treated as industrial or commercial
waste under the Controlled Waste Regulations are excluded from the requirement for a
permit. 22
16
Available at http://archive.defra.gov.uk/environment/waste/controls/exemptions.htm#ep
Available at: http://archive.defra.gov.uk/environment/policy/permits/guidance.htm#ep
18
This largely reproduces Schedule 1 of the Pollution Prevention and Control Regulations 2000.
19
Guidance on Part A installations available at
http://archive.defra.gov.uk/environment/policy/permits/guidance.htm#ep
20
Directive 2008/98/EC on waste. Note that section 33(1)(a) of the Environmental Protection Act 1990
contains offences relating to waste operations that are not disposal or recovery operations and for which the
Regulations provide exemptions in regulation 68 and Schedule 25
21
Food and Environmental Protection Act 1985
22
Regulation 3(2) of the Controlled Waste (England and Wales) Regulations 2012 (SI 2012/811).
17
10
Installations and waste operations – exempt waste operations
3.16 Waste operations not carried on at an installation are capable of being exempt
waste operations (regulation 5). Exempt waste operations do not require an environmental
permit (see the section on Exempt Facilities) but need to comply with the general rules laid
down for each type of exempt activity, and must be registered with the relevant registration
authority.
3.17 No other type of waste operation carried on at an installation, for example as a
directly associated activity, is capable of being an exempt waste operation.
Mobile plant
3.18 Mobile plant is defined in regulation 2 as Part B mobile plant or waste mobile plant.
The 2010 Regulations require that to be mobile, plant must be designed to move or be
moved. This movement can be by road, rail or water e.g. by canal. The Environment
Agency has published guidance on relevant factors to consider in assessing whether plant
it regulates is mobile, such as its environmental impact, degree of mobility and the
intention of the operator. 23
3.19
Plant that carries out a Part A activity will be regarded as stationary. A
stationary technical unit forms the basis of an installation and must be, by definition,
stationary.
3.20
European Commission guidance explains the definition of installation 24 and
considers the meaning of ‘stationary’. The Commission guidance considers the question of
whether plant that is designed to be moved periodically but which in practice operates from
the same location for some time, should be considered to be ‘stationary’. Suggested tests
include: the length of time the plant is expected to or does in fact, remain stationary; the
nature of the activities and their environmental impact; and the degree of physical
installation involved in moving and establishing the plant.
3.21
The Commission guidance also concludes that whilst the term ‘stationary’ means
that the installation as a whole should be stationary, it may still include plant or equipment
which is mobile. For example, plant that is mobile which meets the criteria for being a
directly associated activity will be regarded as part of the installation and will not be treated
as mobile plant within the meaning of the Regulations.
Mobile plant – Waste mobile plant
3.22
Waste mobile plant is defined in regulation 2 as mobile plant which is used to
carry on a waste operation and is designed to move or be moved whether on roads or on
other land. Part B mobile plant and installations are excluded from this definition.
23
Regulatory Guidance Note 2 http://publications.environment-agency.gov.uk/PDF/GEHO0212BULW-EE.pdf
24
ec.europa.eu/environment/ippc/pdf/installation_guidance.pdf
11
3.23
Waste operations are described above. Any waste operation, other than those
which are part of an installation, can theoretically be carried on by mobile plant.
Mobile plant – Part B mobile plant
3.24
Guidance on Part B mobile plant can be found in the General Guidance Manual
on Policy and Procedures for A2 and B Installations 25 .
Mining waste operations
3.25
A mining waste operation is the management of extractive waste, whether or not
involving a mining waste facility, but does not include activities in Article 2(2)(c) of the
Mining Waste Directive 26 . Further guidance on the meaning of mining waste operation is
provided in the Mining Waste Directive guidance.
Radioactive substances activities
3.26
A radioactive substances activity is one involving the keeping and use of
radioactive material (including mobile radioactive apparatus) or the accumulation and
disposal of radioactive waste, and which is not excluded or exempted from regulation as a
radioactive substances activity. Further guidance is available in the Guidance on
Radioactive Substances Regulation (see Chapter 3 of Guidance on Radioactive
Substances Regulation) and the Guidance on the Scope of and Exemptions from the
Radioactive Substances Legislation in the UK 27 .
3.27
For nuclear site licensees, the keeping and use of radioactive material and
accumulation of radioactive waste are regulated by the Office for Nuclear Regulation
(ONR).
Water discharge activities
3.28
•
A water discharge activity is, in summary:
•
the discharge or entry to certain waters of any poisonous, noxious or polluting
matter, waste matter, trade effluent or sewage effluent
the discharge from land through a pipe into the sea of any trade effluent or sewage
effluent
•
the removal of certain deposits from the bed of inland freshwaters
•
the cutting or uprooting of a substantial amount of vegetation in inland freshwaters
and failure to take reasonable steps to remove the vegetation from the waters; or
25
Available at:
http://archive.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm#ep
26
Directive 2004/21/EC on the management of waste from extractive industries.
27
Available at: http://archive.defra.gov.uk/environment/policy/permits/guidance.htm#ep
12
•
the operation of a highway drain or a discharge of trade or sewage effluent into
lakes or ponds which are not inland freshwaters where a notice in relation to the
activity has taken effect.
3.29
A water discharge activity does not include a discharge of trade effluent or
sewage effluent from a vessel, certain types of discharge unless a notice has been served,
or certain discharges made under prescribed statutory provisions.
3.30
Certain types of water discharge activity are capable of being exempt water
discharge activities (see the section on Exempt Facilities)
3.31
Further guidance is available in the Guidance on Water Discharge Activities (see
Chapter 3 of Guidance on Water Discharge Activities).
3.32
Sometimes a water discharge activity forms part of the operation of a regulated
facility of another class (e.g. an installation). When it does not, it is referred to in this
guidance as a ‘stand-alone water discharge activity’. Some provisions of the Regulations
(identified in this Guidance) apply only to stand-alone water discharge activities.
Groundwater activities
3.33
A groundwater activity is, in summary:
•
the discharge of a pollutant that results in or might lead to a direct or indirect input
to groundwater
•
any other discharge that might lead to a direct or indirect input of a pollutant to
groundwater
•
an activity in respect of which a notice under Schedule 22 has taken effect
•
an activity that might lead to a discharge mentioned above where that activity is
carried on as part of the operation of a regulated facility of another class.
3.34
The regulator may determine that a discharge (or an activity that might lead to a
discharge) is not a groundwater activity if the input of the pollutant: (a) is the consequence
of an accident or unforeseen natural event; (b) is of a quantity so small as to pose no risk
to groundwater; or (c) cannot, subject to conditions, be prevented.
3.35
Certain types of groundwater activity are capable of being exempt groundwater
activities (see the section on Exempt Facilities)
3.36
Further guidance is available in the Guidance on Groundwater Activities (see
Chapter 2).
3.37
Sometimes a groundwater activity forms part of the operation of a regulated
facility of another class (e.g. an installation). When it does not, it is referred to in this
guidance as a ‘stand-alone groundwater activity’. Some provisions of the Regulations
(identified in this Guidance) apply only to stand-alone groundwater activities.
13
Small waste incineration plant
3.38
A small waste incineration plant is one whose capacity is below the relevant
threshold in Section 5.1 of Part 2 of Schedule 1 to the EPR. As such, in England it will be
subject only to the requirements of Schedules 13/13A unless it is exempt from those
requirements because it burns only the wastes which are specified in paragraph (a) of Part
B of Section 5.1. In Wales, small waste incinerators are, like their larger counterparts,
subject to chapters II and IV of the industrial emissions Directive and of the revised Waste
Framework Directive (Schedules 8, 13/13A and 21 of the EPR).
Solvent emission activity
3.39
A solvent emission activity is one which is listed in Annex VII of the industrial
emissions Directive and hence subject to Schedule 14 of the EPR. In Wales, solvent
emission activities are subject to Schedule 8 of the EPR.
A single permit
3.40
An environmental permit can cover more than one regulated facility (regulation 17).
When can a single permit be granted?
3.41 A single environmental permit can only be granted for more than one regulated
facility where:
•
the regulator is the same for each facility
•
the operator is the same for each facility, and
•
all the facilities are on the same site (the exceptions to this are set out below).
3.42 Where the regulator and operator are the same, a single environmental permit can
be granted to an operator for more than one mobile plant 28 . Mobile plant do not have to be
operating on the same site in order to be included in a single permit.
3.43 Where the regulator and operator are the same, a single environmental permit can
be granted to an operator for more than one regulated facility to which standard rules
apply (a ‘standard facility’, see chapter 8 on Standard Permits). Standard facilities do not
have to be on the same site in order to be included in a single permit.
3.44 A permit which authorises the keeping or use of mobile radioactive apparatus may
authorise the carrying on of that activity on more than one site.
3.45 Regulated facilities have to be operated on the same site in order to be covered by
the same permit (with the exceptions of mobile plant, standard facilities and radioactive
substances activities involving the keeping or use of mobile radioactive apparatus). The
28
This allows a continuation of the Mobile Treatment Licence approach see: www.environmentagency.gov.uk/business/topics/waste/32160.aspx
14
regulator should consider the following factors in determining whether the facilities are
operated on the same site:
•
Proximity: There should however be no simple ‘cut off’ distance since some
industrial complexes cover very large areas but still can be regarded as one site for
permitting purposes
•
Coherence of a site: Some regulated facilities will be operated within a single
fenced area or may share security or emergency systems
•
Management systems: The extent to which the regulated facilities share a common
management system is a relevant consideration.
3.46 It is expected that a regulator will adopt a common sense approach to determining
when facilities should be regulated under one permit. This consideration should be based
on achieving protection of the environment in the most efficient regulatory manner.
When is it not possible to have a single permit?
3.47 A single environmental permit cannot cover regulated facilities with different
regulators (see the chapter 4, section 4.8 on
A single regulator for each site). A separate permit is required covering the facilities for
which each regulator is responsible.
3.48 A single permit cannot cover mobile plant combined with any other class of
regulated facility. Mobile plants are not associated with a particular geographical site. The
differences in the requirements for mobile plant mean that a single permit cannot cover
mobile plant and other classes of regulated facility.
15
4. The Regulator
This chapter identifies the regulator for different types of facility. It also describes how the
regime enables regulation under one regulator.
The regulator
4.1
The regulator for each class of regulated facility is identified in regulation 32
(subject to any direction under regulation 33 29 ; see paragraph 4.8 below).
4.2
The Environment Agency regulates:
•
Part A(1) installations
•
waste mobile plant
•
waste operations, including those carried on at a Part B installation or by Part B
mobile plant (unless the waste operation is a Part B activity)
•
mining waste operations, including any carried on at a Part B installation
•
radioactive substances activities
•
water discharge activities, including those carried on at a Part B installation
•
groundwater activities, including those carried on at a Part B installation.
4.3
The relevant local authority 30 regulates:
•
Part A(2) installations including any waste operations, water discharge activities or
groundwater activities carried on as part of the installation or mobile plant
•
Part B installations and Part B mobile plant (except as set out above)
•
Small waste incineration plants
•
Solvent emission activities.
4.4
Defra and the Welsh Government jointly provide guidance on local authority air
pollution control 31 . Guidance on Part A(1) and Part A(2) installations can be found in the
Guidance on Part A installations 32 .
29
See in particular the Environmental Permitting (England)(Transitional – Exercise of Agency Functions at
Part B installations) Direction 2010; and Wales equivalent, available at http://wales.gov.uk
30
Regulation 6 provides a full interpretation of ‘local authority’.
31
Available at:
http://archive.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm#ep
32
Available at http://defra.gov.uk/environment/policy/permits/guidance.htm#ep
16
Working together
4.5
Where both a local authority and the Environment Agency exercise functions under
the Regulations in relation to facilities at one site, they should work together in the
permitting process. There should be adequate consultation with the local authority where
the Environment Agency is the regulator, and vice versa. Chapter 10 on 9.24
Regulators can reassess competence at any time and if not satisfied can revoke the
permit (see the section in Chapter 11 on
Revocation). In particular, if the operator of a relevant waste operation fails to comply
with an approved competence scheme, the regulator may revoke the permit.
Consultation and public participation sets out the requirements for consulting on
applications.
4.6
The Environment Agency can set the minimum standard for releases to water for a
permit regulated by a local authority (regulation 58).
A single regulator for each site
4.7
The Secretary of State or the Welsh Ministers can issue a direction changing the
regulator (regulation 33). This direction can be for a specific regulated facility or for a
particular class of regulated facility. A direction can only direct a local authority to exercise
the Environment Agency's functions in relation to an installation (but not in relation to a
mining waste operation carried on at an installation) or mobile plant.
4.8
Where the Secretary of State or the Welsh Ministers make (or withdraw) a direction
under regulation 33, this must be published on the relevant website. The local authority
and the Environment Agency must be notified as well as any other person who will be
affected by the direction.
4.9
It is anticipated that this power would be used in a way that helps simpler regulation
and any other relevant environmental and regulatory consideration. These directions are
therefore likely to be used mainly where there are regulated facilities on the same site but
with different regulators. It is not possible to have a single permit with more than one
regulator (see the chapter 3, section 3.39 on A single permit) so a direction to change
regulators can allow a single permit for the site.
4.10 On the coming into force of the Regulations, regulated facilities remain regulated by
their existing regulators, unless a direction under regulation 33 is given (see also chapter
5, section 5.16 on 5.14
Applicants for complex proposals are likely to find preapplication discussions particularly beneficial. Wherever possible in such cases, operators
should engage in pre-application discussions with the regulator before submitting an
application for an environmental permit. This can potentially avoid significant costs and
delay in the course of the permitting process by identifying any issues of fundamental
concern at an early stage and ensuring these are addressed at the design stage if
possible.
5.15 For certain waste operations and certain mining waste facilities, where planning
permission is required it must be in force before an environmental permit can be granted
(Schedule 9, paragraph 3).
17
Transitional arrangements). It is open to operators and/or regulators to seek a
direction to transfer regulatory control between regulators.
4.11 The operator or the regulators may make a written request to the Secretary of State
or Welsh Ministers for a direction in cases where facilities requiring both a local authority
environmental permit and an Environment Agency environmental permit are being
operated on the same site. This is most likely to arise where there is a waste operation
being carried on in part of a Part A(2) or Part B installation.
4.12 The aim is to allocate regulatory responsibility to the regulator of the major activity
on the site. The Secretary of State or the Welsh Ministers will consider each case on its
merits having regard to the views of the parties, but will be guided by the following criteria:
•
where both sets of regulators and the operator seek a direction, the
Secretary of State or Welsh Ministers will give it unless they are aware of any
regulatory or environmental protection reason not to
•
where there is disagreement among the three parties:
-
-
•
4.13
if the disagreement is between the regulators, the Secretary of State
or Welsh Ministers will need to be persuaded that there are sound
regulatory or environmental protection reasons why regulation by a
single regulator would be inappropriate
if the operator disagrees, the Secretary of State or Welsh Ministers will
need to be persuaded that there are sound regulatory or
environmental protection reasons why regulation by a single regulator
would be appropriate.
the underlying principle will be to favour allocating regulatory responsibility
based on which is the major activity on site and which is the regulator for that
major activity.
This principle may, however, be influenced by the following:
•
whether the ‘minor’ activity has disproportionate potential environmental
impacts
•
whether the ‘minor’ activity gives rise to particular technical or other
complexities
•
consistency with the way other similar sites in the sector are regulated
•
consistency with the way similar sites run by the same operator are regulated
•
the views of the parties on the above criteria.
4.14 Where a single regulator has been determined, this may result in a single site
permit being drawn up (see the chapter 3 section on A single permit).
18
5. Environmental Permit Applications
This chapter sets out who is required to obtain an environmental permit and the
transitional arrangements for existing PPC permits, waste management licences, mining
waste operations, water discharge consents, groundwater permits and radioactive
substances authorisations and registrations.
The operator
5.1
Only the person who has control over the operation of a regulated facility may
obtain or hold an environmental permit. This person is the ‘operator’ (regulation 7).
Box 1 – Definition of operator
‘Operator’
‘Operator’ is defined in regulation 7 as the person who has control over the operation of a
regulated facility.
If a regulated facility has not been put into operation, the person who will have control over
it when it is in operation is the operator.
If a regulated facility authorised by an environmental permit has ceased to be in operation,
the person who holds the permit is the operator.
Legal obligations may be imposed on an operator during the pre- and post-operational
phases.
The operator must demonstrably have the authority and ability to ensure the
environmental permit is complied with.
5.2
An operator will have to obtain one or more environmental permits for each
regulated facility he operates.
5.3
For example, to understand the relationship between ‘operator’, ‘regulated facility’
and ‘installation’:
•
a ‘regulated facility’ is a facility which falls within one of the classes listed in
regulation 8
•
one of those classes is an ‘installation’
•
an ‘installation’ can include one or more other regulated facilities (e.g a waste
operation’ or ‘water discharge activity’) but will only require one permit unless the
next bullet applies
•
if different parts of a single installation are operated by different operators, each part
of the installation with a separate operator constitutes a separate regulated facility
19
•
if the number of operators operating different parts of the installation changes over
time, the number of regulated facilities will therefore also change
•
where there are different operators of different parts of one installation, each will be
responsible for complying with their permit conditions. In such cases, regulators
should ensure that there is no ambiguity over which operator has responsibility for
which part of the installation.
Pre-application discussions
5.4
Pre-application discussions between operators and regulators can help in improving
the quality of the formal application and are therefore encouraged. In order for such
discussions to make the best use of time, the operator is expected to have read the
relevant published guidance. The regulator should not be expected to provide advice that
might prejudice its determination of an application.
5.5
Operators and regulators may use the discussions to clarify whether a permit is
likely to be needed. The regulator may also give operators general advice on how to
prepare their applications, focus on the key issues, and tell them what additional guidance
is available. Other parties may be invited to join these discussions – for example, a public
consultee (see chapter 10 on 9.24
Regulators can reassess competence at any time
and if not satisfied can revoke the permit (see the section in Chapter 11 on
Revocation). In particular, if the operator of a relevant waste operation fails to comply
with an approved competence scheme, the regulator may revoke the permit.
Consultation and public participation). Participation of other parties might be subject to
national security restrictions or limited because of commercial confidentiality issues (See
Chapter 14 Public register and information).
5.6
Operators should bear in mind that, especially for controversial cases (i.e those
where there is a high level of public interest), good engagement with local or national
interested parties at the pre-application stage can be beneficial to all sides and operators
are encouraged to take account of the interests of the local community at the earliest
possible stage.
Using existing data
5.7
Operators may draw upon or attach other sources of information in their
applications such as extracts from:
33
•
Environmental Impact Assessments
•
documents relating to an installation’s regulation under the Control of Major
Accident Hazards (COMAH) Regulations 33
•
externally certified environmental management systems
•
site reports prepared for planning purposes
The Control of Major Accident Hazards Regulations 1999. (SI 1999 No.743)
20
•
reports to meet Quarries Regulations 1999.
5.8
They should make clear which parts of any attachments are relevant to their
environmental permit applications and should demonstrate how they relate to the relevant
requirements.
Timing of applications 34
5.9
Where proposals involve substantial expenditure, whether on construction work,
equipment, software, procedures or training, operators should normally make an
application when they have drawn up full designs but before the work commences
(whether on a new regulated facility or when making changes to an existing one). Where
facilities are not particularly complex or novel, the operator should usually be able to
submit an application at the design stage containing all information the regulator needs. If,
in the course of construction or commissioning, the operator wants to make any changes
which mean that the permit conditions have to be varied, the operator may apply for this in
the normal way (see chapter 6 on Application Procedures).
5.10 There is nothing in the Regulations to stop an operator from beginning construction
before a permit has been issued. However, regulators may not agree with the design and
infrastructure put in place. Therefore, to avoid any expensive delays and re-work, it is in
the operator’s interest to submit applications at the design stages. Any investment or
construction work that an operator carries out before they have an Environmental Permit
will be at their own risk and will in no way affect the regulator’s decision.
Novel applications
5.11 If an operator is planning an innovative process for which the regulator has not
produced relevant guidance, the operator should, in consultation with the regulator,
assemble details of the process, including the potential environmental impact, before
making an application. When determining the application the regulator must consider the
predicted environmental outcome rather than focussing on the novel nature of the process.
5.12 For some novel and complex installations, with long lead times and multiple design
and construction phases, the regulator and the operator may agree to a staged application
procedure 35 .
Planning and environmental permit applications
5.13 If a regulated facility also needs planning permission, it is recommended that the
operator should make both applications in parallel whenever possible. This will allow the
environmental regulator to start its formal consideration early on, thus allowing it to have a
more informed input to the planning process 36 .
5.14 Applicants for complex proposals are likely to find pre-application discussions
particularly beneficial. Wherever possible in such cases, operators should engage in pre-
34
These paragraphs do not apply to radioactive substances activities consisting of intrusive investigation
work.
35
This procedure is not the same as the staged procedure described in the Guidance on Radioactive
Substances Regulation.
36
http://www.environment-agency.gov.uk/business/regulation/139378.aspx
21
application discussions with the regulator before submitting an application for an
environmental permit. This can potentially avoid significant costs and delay in the course
of the permitting process by identifying any issues of fundamental concern at an early
stage and ensuring these are addressed at the design stage if possible.
5.15 For certain waste operations and certain mining waste facilities, where planning
permission is required it must be in force before an environmental permit can be granted
(Schedule 9, paragraph 3) 37 .
Transitional arrangements
Existing permissions
5.16 The Regulations provide transitional arrangements for existing permits, licences,
authorisations, registrations and consents (‘existing permissions’) to become
environmental permits when the Regulations come into force (regulations 69, 86, 91 and
92). New applications for environmental permits are therefore not required where an
existing permission is held.
5.17 The regulator for existing permissions remains the same and will not change unless
there is a subsequent direction from the Secretary of State or the Welsh Ministers (see the
chapter 4 section on A single regulator for each site).
Existing permissions with an outstanding application to transfer,
surrender, vary or modify
5.18 Any outstanding, duly-made, application in relation to an existing permission is
taken to be made under the Regulations. The relevant applications are those to transfer,
surrender, vary or modify the existing permission (regulations 75, 87, 88 and 92).
Outstanding applications for the grant of a permission under
predecessor legislation
5.19 Some facilities will be the subject of an outstanding application for the grant of a
permit, licence, authorisation, registration or consent under predecessor legislation on the
date the Regulations came in to force (regulations 87 to 91). These applications are also
taken to be made under the Regulations.
Appeals
5.20 Appeals should be made and be determined under the Regulations even if the right
to appeal arose or the appeal was commenced under the predecessor legislation
(regulations 78, 79, 81, 82, 95, 96, 98 and 99).
Enforcement
37
Under review – this requirement may be removed subject to the response to public consultation.
22
5.21 Any outstanding enforcement action commenced before the coming into force of the
Regulations continues to be valid. Notices such as enforcement notices, served under
former regimes are taken to be the equivalent form of notice under the Regulations.
Prosecution in relation to breaches or incidents that occurred before the coming into force
of the Regulations should be taken under the legislation that was in force at the time of the
breach or incident. Enforcement notices under the Regulations may be served in relation
to such breaches if they are ongoing at the time the Regulations come into force but not
otherwise.
Existing mining waste operations
5.22 The Regulations provide transitional arrangements for existing mining waste
operations to enter into environmental permitting (regulation 105). Mining waste operations
are ‘existing’ where they are in operation on 1 May 2008.
5.23 The Regulations require that operators of existing mining waste operations involving
mining waste facilities must apply for an environmental permit on or before 1 May 2011. If
there is already an environmental permit authorising the operation of another class of
regulated facility on the site, for which the Environment Agency is the regulator, the
operator can apply to vary the permit to include the mining waste operation.
5.24 The Regulations require that operators of existing mining waste operations not
involving a mining waste facility must apply for the grant or variation of an environmental
permit on or before 30 December 2010.
Exempt waste operations which will require a permit as a result of the
Review of Waste Exemptions
5.25 These waste operations are subject to transitional arrangements which are
described in the Guidance on Exempt Waste Operations.
Consolidation into a single permit
5.26 The Regulations provide (regulation 18) that the regulator can replace
environmental permits for a number of regulated facilities with a single permit covering the
same facilities. This single permit would contain the same conditions as the permits which
are replaced.
5.27 This consolidation can be done where there is more than one regulated facility with
the same operator. However there are limits to the permits that can be combined (see the
chapter 3 section on A single permit).
5.28 It is expected that the regulator will not normally exercise this power without the
agreement of the operator.
23
6. Application Procedures
This chapter describes the process of making applications. It covers applications for
environmental permits and also applications to vary, transfer and surrender permits.
Applications
6.1
The requirements for applications are set out in Schedule 5 to the Regulations. The
application must:
•
be made by the operator (though it may be made by an agent acting on behalf of
the operator)
•
in the case of a transfer application, be made jointly by the current operator and the
future operators
•
be made on the form provided by the regulator
•
include the information required by the application form
•
include the relevant fee (see chapter 12 on Charging).
6.2
An applicant can withdraw an application at any time before it is determined but the
regulator is not obliged to return any of the application fee.
Application forms
6.3
Operators must use the forms provided by regulators to make their applications.
Application forms should:
•
be clear and simple to understand
•
identify any administrative and technical information required
•
require the information required by any relevant directive(s)
•
require, where relevant, the assessment of the potential impact on the environment
and human health
•
require, where relevant, a level of detail proportionate to the environmental risk, and
•
be sufficiently comprehensive to enable operators to submit complete applications.
Ensuring applications are complete and duly made
6.4
Applications should give all the information a regulator needs to make a
determination. If an operator fails to provide enough information the application may not be
‘duly made’, which means that it cannot be determined. A regulator may conclude that an
application is not duly made when, for instance:
•
it has not been submitted on the correct form
24
•
it is for an activity that falls outside the scope of the Regulations
•
it has been sent to the wrong regulator
•
the necessary fee has not been paid
•
it has not adequately addressed a key point in the application form.
6.5
Where there is more than one operator of an installation, each operator must make
a permit application in respect of the part of the installation he or she operates. The
regulator cannot consider that the separate applications are duly made unless it has
received the applications from all of the operators.
6.6
Regulators should use normal standards of reasonableness and common sense to
assess whether applications are duly made. The regulator should always tell the applicant
why it considered that an application was not duly made.
6.7
The regulator should acknowledge duly made applications, identifying the date it
expects to determine the application. Acknowledgements should explain how, if the
application is not determined on time, the applicant can notify the regulator that it
considers the application to have been refused and so allow an appeal against that refusal
(Schedule 5, Part 1, paragraph 17 and see chapter 13 on Appeals).
6.8
A regulator may accept changes to a duly made application where it considers it
appropriate. This can include a proposed change in the operator of a new facility. Where
the regulator considers the proposed change to be too significant, a new application would
be required. The implications of changes to an application for the requirements of public
participation should always be considered (see chapter 10 on 9.24 Regulators can
reassess competence at any time and if not satisfied can revoke the permit (see the
section in Chapter 11 on
Revocation). In particular, if the operator of a relevant waste operation fails to comply
with an approved competence scheme, the regulator may revoke the permit.
Consultation and public participation) and might indicate either that a new application
should be required or that there should be further consultation.
Determination periods
6.9
The determination period begins on the date the regulator receives an application
which is subsequently determined to be duly made (Schedule 5, paragraph 16). A rare
exception to this is where it is necessary to consult with other Member States (Schedule 5,
Part 1, paragraph 10). This can only apply to an activity listed in Annex I of the industrial
emissions Directive (see the Guidance on Part A installations 38 ) and to a Category A
mining waste facility (see the Guidance on the Mining Waste Directive 39 ) 40 .
38
Available at www.defra.gov.uk/environment/policy/permits/guidance.htm
Ibid
40
Note that certain radioactive substances activities require an opinion from the European Commission under
Article 37 of the Euratom Treaty before grant of an environmental permit (see the Guidance on Radioactive
Substances Regulation)
39
25
6.10
15):
The periods for determining applications are (see Schedule 5, Part 1, paragraph
•
two months for an application to transfer a permit
•
three months for an application
-
to surrender a permit
-
to vary a permit (other than where public participation is required)
-
in relation to mobile plant
-
for a permit for a standard facility (other than a Part A installation – see
chapter 8 Standard Permits)
-
for a permit for a mining waste operation not involving a mining waste facility
to which Article 7 of the Mining Waste Directive applies.
• Four months for an application:
• for a standard facility which is a Part A installation
• for the grant of an environmental permit (other than mobile plant, and the
standard facilities and mining waste operations listed above)
• to vary a permit where public participation is required.
• These are the legal requirements but, in order to meet a recommendation from the
Penfold Review on non-planning consents 41 , the Environment Agency now aims to
determine all new permit applications within 13 weeks 42 , subject to a number of
exceptions agreed with Government, these are:
o Major/Complex projects on a scale similar to those determined through
the Major infrastructure planning unit.
o Factors beyond the Environment Agency’s control;
Where the statutory consultation periods take up all or a significant
proportion of 13 week period or the site is of high public interest
and extended consultation is required.
Where the delay is due to another permission, consent or decision
being required before the permit can be issued (for example “call
in” by the Secretary of State, a planning consent is required or the
permit application is linked to another permit).
41
See chapter 3 of the review http://www.bis.gov.uk/assets/biscore/better-regulation/docs/p/10-1027-penfoldreview-final-report.pdf
42
Applications, driven by legislative deadlines, that create short term yet significant increases in permit
applications fall outside of the Penfold 13 week target (for example new waste installation permits required
by the Industrial Emissions Directive in 2015)
26
Where a notice for further information is required to complete the
determination.
o Where a different deadline is agreed with the applicant.
6.11 No determination period applies to an application for the grant or transfer of a
permit from a nuclear site licensee in relation to a radioactive substances activity.
6.12 The determination period for an application for a permit for a Category A mining
waste facility does not begin until the regulator is notified by the relevant emergency
planner 43 that it has the information necessary to enable it to draw up an external
emergency plan.
6.13 It is always open to the regulator and the applicant to agree a longer period if this is
necessary.
6.14 Where the regulator has not determined the application within the necessary time
the applicant can notify the regulator that it considers the application to be refused. The
applicant may then appeal against the refusal (see chapter 13 on Appeals).
6.15
The determination periods quoted above can lengthen where:
•
decisions are required as to whether information is sensitive due to commercial or
industrial confidentiality and/or national security, and/or
•
further information is required to determine the application.
6.16 The ‘clock stops’ on the determination period where the regulator has served a
notice requiring further information (Schedule 5, Part 1, paragraph 16(3)(a)). The clock
starts again once the regulator has received all the information required by the notice.
43
‘Competent Authority’ as defined by regulation 2 of the Major Accident Off-Site Emergency Plan
(Management of Waste from Extractive Industries) (England and Wales) Regulations 2009
27
Requests for more information
6.17 There may be circumstances where the regulator needs to serve a notice asking for
more information it needs to determine the duly-made application (Schedule 5, Part 1,
paragraph 4).
6.18 The regulator should only require further information where that information is
essential to allow the application to be determined. Any request for further information
should meet at least one of the following criteria. The information must be necessary to:
•
assess whether the proposal meets any directive or other requirements, or
•
determine the appropriate permit conditions to impose.
6.19
This information might, for example, comprise:
•
information to understand sufficiently the environmental impact or risk posed, or
•
information to understand sufficiently the proposed operations.
6.20 Any further information notice must be served as soon as possible in the
determination process. The notice must clearly specify what information the regulator
requires to determine the application, why it needs that information and when the
information must be supplied. A reasonable period should be given for the applicant to
provide the information.
6.21 The applicant must provide all the information specified in the notice. Omissions
either in the range or detail of information may result in the regulator considering that the
applicant has failed to provide the information.
6.22 The regulator can decide, if the applicant does not provide the further information,
that the application should not be continued with. Where this occurs, the regulator must
first review its decision to require further information and then may serve a notice stating
that the application is deemed to have been withdrawn.
6.23 Where a regulator intends to take this step, it should normally offer the operator a
final opportunity to supply the information and consider offering an opportunity for a faceto-face meeting. There is a right of appeal against the deemed withdrawal of the
application (see chapter 13 on Appeals).
Duty to consider representations
6.24 The regulator has a duty to consider the representations made during the
determination process (Schedule 5, paragraph 11). These representations may be
received from:
•
members of the public or interested bodies
•
persons with rights to land
•
other Member States.
28
6.25 Public participation is dealt with in chapter 10 on 9.24 Regulators can reassess
competence at any time and if not satisfied can revoke the permit (see the section in
Chapter 11 on
Revocation). In particular, if the operator of a relevant waste operation fails to comply
with an approved competence scheme, the regulator may revoke the permit.
Consultation and public participation.
Permit conditions requiring the consent of others
6.26 Regulators can impose permit conditions requiring operators to do things which
they are not entitled to do without the consent of another person (regulation 15(1)). That
person is required to grant such rights as are necessary to enable the operator to comply
with the condition. However, the person granting those rights is entitled to compensation
from the operator (Schedule 5, Part 2).
6.27 These conditions may for example be used where it is necessary to monitor the
effects of an activity on another person’s land.
6.28 The people who own or have the ability to grant rights to the land must be notified
by the regulator (Schedule 5, Part 1, paragraph 9).
Notification of the determination
6.29 The regulator must notify the applicant of its decision and the reasons for making
the decision (Schedule 5, Part 1, paragraph 17). The determination must also be published
on the regulator's website. Applicants must be informed of their rights of appeal (see
chapter 13 on Appeals).
6.30 Whenever it considers it necessary, the regulator should issue a new permit
consolidating any changes brought about by the application for variation, transfer (in whole
or in part) or partial surrender (Schedule 5, Part 1, paragraph 19). This will provide clarity
for both the regulator and the operator.
Specific procedures for different types of applications
Variation applications
6.31 Once an operator has an environmental permit, changes in the operation of the
regulated facility may require the operator to apply to vary the permit 44 .
6.32 The operator must apply to the regulator to vary the permit conditions when
proposing a change that would mean that a permit condition could no longer be complied
with. Other aspects of the environmental permit may also require a variation application –
for example, to change the name of the operator on the permit (though not when the
operator's legal identity changes, for example a change to its unique identifier at
Companies House; this would require a transfer application).
44
Specific provisions apply to Part A installations - see the Guidance on Part A installations
29
6.33 A variation application may include an increase to the extent of the site over which
the regulated facility operates, as covered by the permit. Where this occurs, issues such
as the protection of the land must be addressed.
6.34 However, a variation cannot reduce the extent of the site covered by the
environmental permit if the permit requires consideration of the condition of the land. Since
this is not required for Part B activities (regulated for emissions to air only), or for ‘stand
alone’ water discharge or groundwater activities, this restriction does not apply to them
(regulations 20(2) and 20(3)). Where the restriction does apply, an operator wishing to
reduce the extent of the site of the regulated facility must apply for partial surrender (see
the section on Surrender applications and notifications).
6.35 For applications to vary an environmental permit, public participation is required in
two situations (Schedule 5, Part 1, paragraph 5). Firstly where there is a substantial
change to the operation of an installation (see guidance for Part A installations 45 ) and
mining waste facilities 46 . Secondly, the regulator may also require consultation in cases
(whether or not relating to an installation) that do not involve substantial changes. In these
cases, the regulator will notify the operator of its decision and the consultation will proceed
as if there were a substantial change (see 10 on 9.24 Regulators can reassess
competence at any time and if not satisfied can revoke the permit (see the section in
Chapter 11 on
Revocation). In particular, if the operator of a relevant waste operation fails to comply
with an approved competence scheme, the regulator may revoke the permit.
Consultation and public participation).
Transfer applications and notifications
6.36 The Regulations allow for permit transfers (regulation 21). Whenever the operator's
legal identity changes, for example a change to its unique identifier at Companies House;
or if the permit holder ceases to be the operator, this requires a transfer application or
notification.
6.37
45
46
A permit can be transferred:
•
completely, or
•
partially, so that the regulated facility becomes two regulated facilities with the
original operator retaining control of some of the original facility which then
becomes a separate regulated facility and another operator taking over the
operation of the transferred part of the original facility which then becomes a second
separate regulated facility.
Available at www.defra.gov.uk/environment/policy/permits/guidance.htm
see art 8(3) of the Mining Waste Directive and Schedule 5, paragraph 5(2)(b) and Schedule 20, paragraph
8
30
6.38 Transfer by notification is only possible in the case of any part of a permit that
relates to a ‘stand alone’ water discharge or groundwater activity. In these cases joint
notification by the operator and proposed transferee must be made on a form provided by
the regulator, include information specified on that form and specify an effective date for
the transfer to take place. Where more than one person is the current permit holder only
one such person need notify a transfer, together with the proposed operator.
6.39 In all other cases where an operator wants to transfer all, or part, of a permit to
someone else, they must make a joint application with the proposed new operator. For a
partial transfer, where the original operator retains part of the permit, the application must
include a plan identifying which parts of the site and which regulated facility (or facilities)
the operator proposes transferring.
6.40 Where the regulator grants an application to transfer the whole permit, it will issue a
new permit to the new operator.
6.41 For partial permit transfers, the regulator will issue a new permit to the new
operator. This will cover the parts of the operation that have been transferred. At the same
time, the regulator will issue a new permit to the original operator, reflecting the extent of
the transfer.
6.42 Regulators should vary permit conditions, where necessary, as a result of a
transfer. For example, further conditions may become necessary to reflect the shared
operation. This will ensure that there is co-operation between the operators.
Transfers where the permit holder cannot be located or dies
6.43 Where the regulator is satisfied that the current permit holder who is a private
individual cannot be located, it can accept an application or notification for a transfer from
a proposed transferee alone. The regulator will require the proposed transferee to explain
the basis for their view that the current permit holder cannot be found. If it appears from
the explanation that the proposed transferee has not taken reasonable steps to find the
current permit holder, the regulator can ask for more steps to be taken. As a last resort,
the regulator has the option to reject the application as not duly made, in which case an
application for a new permit would have to be made instead.
6.44 Where there is more than one permit holder, all the holders that can be located
must join the application, but this requirement does not apply to notifications. This type of
transfer is not available where the facility authorised by the permit has been out of
operation for more than 6 months.
6.45 For transfers of this type that require an application, the identity and competence of
the proposed new operator will be assessed in the usual way.
6.46 Where an environmental permit authorising the operation of a regulated facility is
held by an individual who dies, the permit will vest in the personal representatives of the
deceased. They must notify the regulator that the permit has vested in them as soon as
practicable. They have up to six months from the date the operator died to make an
application to transfer the permit. If not transferred within the six months period the permit
will cease to have effect.
31
6.47 In some cases personal representatives may not want to hold the permit in which
case, if they request it to do so, the regulator will consider whether it is appropriate to
revoke the permit. The regulator may also consider revocation if it has serious concerns
about the ability of the personal representatives to operate the facility in accordance with
the permit.
Surrender applications and notifications
6.48 There are two separate methods for surrender. The operators of some regulated
facilities may simply notify the regulator but others must make an application to the
regulator (regulations 24 and 25).
6.49 Surrender of the environmental permit by notifying the regulator is restricted to the
operators of Part B installations (except to the extent they relate to a waste operation),
stand-alone water discharge activities and groundwater activities, and mobile plant.
6.50 The pollution control measures which the regulator is required to apply to Part B
installations, water discharge activities and groundwater activities do not include measures
to address pollution of the land. There is therefore no requirement to consider the
condition of the land prior to surrendering the permit.
6.51 For mobile plant the position is similar in that there is no geographical site
associated with the environmental permit. There cannot therefore be a consideration of the
condition of the land before a surrender takes place. It should be noted that, where
relevant, the permit conditions for mobile plant should be in place to ensure the protection
of the land on which they operate.
6.52 It is possible to surrender part of an environmental permit. This is the only method
of reducing the extent of the site of a regulated facility covered by a permit. Where there is
a partial surrender, the regulator may need to vary the permit conditions to reflect this.
Determination by the Secretary of State or the Welsh Ministers
6.53 The Secretary of State or the Welsh Ministers can require any application to be sent
to them for determination (regulation 62). This would be an exceptional step and likely to
be taken only if the application involves issues of more than local importance – for
example, if the application:
•
is of substantial regional or national significance
•
is of substantial regional or national controversy, or
•
may involve issues of national security or of foreign governments.
Any decision on the need for determination by the Secretary of State or Welsh Ministers
would be made solely on those grounds, with no consideration of the substantive merits of
the application itself.
6.54 The Secretary of State or the Welsh Ministers will deal with these cases as soon as
possible. The regulator must consult as normal, but should send any representations to
the Secretary of State or the Welsh Ministers. The Secretary of State or the Welsh
Ministers may choose to arrange a hearing, and would normally do so if the regulator or
32
the operator asks for one. The Secretary of State or the Welsh Ministers may then direct
the regulator to:
•
grant a permit, stating which conditions should be included, or
•
refuse the permit.
33
7. Determining Applications
This chapter deals with the decision making of the regulator in determining applications. It
also sets out the relevant criteria for the different categories of applications.
Determination
7.1
The regulator must decide whether to grant or refuse the proposal in an application
and, where applicable, what permit conditions to impose.
7,2
For all applications made under the Regulations, the regulator must ensure that its
determination delivers the relevant directive and other requirements and provides the
required level of protection to the environment.
Assessing environmental risk
47
7.3
The application to the regulator will, as relevant, include an assessment of the
environmental risk of the proposals including the risk under both normal and abnormal
operating conditions. The regulator should satisfy itself that the operator's assessment of
the risk is sufficiently robust. In particular, any assumptions that the operator has made
about its proposals must be clearly justified. The regulator should assess the application
and the adequacy of the impact assessment including whether the control measures
proposed by the operator are appropriate for mitigating the risks and their potential impact.
7.4
Guidance on environmental risk assessment has been produced and where
appropriate regulators should make reference to this guidance 48 .
The directive requirements
7.5
European Directives set out most of the requirements to be met through
environmental permitting. Schedules 7 to 23 set out those directive Articles that the
regulator must take into account when permitting regulated facilities under the
environmental permitting regime. Chapter 2 illustrates the way that various different
directive requirements may apply to a regulated facility and references guidance on the
directive specific requirements.
Refusing an application
7.6
The regulator must refuse a permit application in certain circumstances (see the
section on
Permit applications).
47
Paragraphs 7.3 and 7.4 do not apply to radioactive substances activities: see instead the Guidance on
Radioactive Substances Regulation.
48
Department of the Environment, Transport & the Regions, Environment Agency & The Institute For
Environment & Health (2000) Guidelines for Environmental Risk Assessment and Management – Revised
Departmental Guidance.
34
7.7
The regulator may also decide to refuse an application in certain circumstances.
Examples of cases where this might be appropriate are:
• the regulator has reason to believe that the operator is not competent to run the
regulated facility in accordance with the permit (see chapter 9 on Operator
competence)
•
the environmental impact would be unacceptable. For instance, an operator might
propose siting a new facility close to an extremely sensitive environment, but with
no means of providing adequate control
•
the information provided by the operator does not provide a reasonable basis to
determine the permit conditions, taking into account the operator’s responses to
requests for more information (see the chapter 6 section on
•
Requests for more information), or
•
the requirements of relevant European Directives cannot be met.
Permit conditions
7.8
If the regulator grants a permit it can include any conditions it sees fit (Schedule 5,
Part 1, paragraph 12 (2)). It has a duty to impose conditions in order to secure the
objectives that apply to the class of regulated facility (see
The directive requirements).
Where the regulator grants an application for the variation, transfer or partial surrender of
an environmental permit and there are additional variations needed as a consequence of
the application, the regulator should make those necessary variations to the environmental
permit (Schedule 5, Part 1, paragraph 12(3)(a)).
7.9
All permit conditions should be both necessary and enforceable. ‘Necessary’ means
that the regulator should be able to justify at appeal if necessary the permit conditions it
attaches. To be enforceable, conditions should clearly state the objective, standard or
desired outcome of the condition so that the operator can understand what is required.
Subject to legal requirements, duplication with the requirements of other legislation should
be avoided.
7.10
Permit conditions may comprise some or all of the following:
•
conditions stipulating objectives or outcomes
•
standards to mitigate a particular hazard / risk, or
•
conditions addressing particular legislative requirements.
7.11 The regulator can include conditions in the permit setting out steps to be taken
during, prior to and after the operation of the regulated facility.
Determining different application types
7.12 The general considerations set out above should be applied to all application types.
In addition to these, there are specific considerations for different application types. These
are set out in the following sections.
35
Permit applications
7.13 The regulator is required to refuse an application for a permit in three
circumstances.
•
The regulator must not grant the permit if it considers that the applicant will not be
the operator of the regulated facility (see the chapter 6 section on The operator)
•
Except in the case of ‘stand alone’ water discharge or groundwater activities, the
regulator must not grant a permit if it considers that the operator will not comply with
its conditions (Schedule 5, Part 1, paragraph 13) – see chapter 9 on Operator
Competence
•
The regulator must refuse to grant a permit relating to an existing Category A
mining waste facility if the regulator receives a notice from the relevant emergency
planner that the operator has not provided the information necessary to enable the
relevant emergency planner to draw up an external emergency plan (Schedule 20,
paragraph 14(2)).
Variation applications
7.14 A regulator does not have to accept an operator’s proposals to vary a permit. If it
does, it must impose conditions to secure compliance with the Regulations.
7.15 The regulator may decide that only some parts of the variation sought should be
reflected in revised permit conditions. The regulator may also consider that it needs to
impose conditions that go beyond the operator’s proposals.
Transfer applications
7.16 The regulator must determine whether to allow the transfer. The transfer must be
refused if the regulator considers that the proposed transferee will not be the operator or
will not operate the facility in accordance with the environmental permit (Schedule 5, Part
1, paragraph 13). The primary consideration in transferring a permit is the proposed new
operator's competence to operate the regulated facility. The operator competence
provisions are described in chapter 9 on Operator Competence. This is the same as for
new permit applications and the regulator should consider the applications in the same
way.
Surrender applications
7.17 An environmental permit remains in force until it is surrendered, revoked or
consolidated or, where a permit is held by personal representatives following the death of
the permit holder (see paragraph 6.45), no transfer application or notification is made
within 6 months of the death of the permit holder. Until that time, the operator remains
subject to its conditions.
36
7.18 When a regulated facility ceases to operate 49 , an operator should (but is not
compelled to) seek surrender of the permit so as to end regulation under environmental
permitting and the requirement to pay the associated annual charges.
7.19 Chapter 6 sets out the two methods of surrender: application and notification. This
section deals with applications to surrender an environmental permit i.e. where the
regulator must make a decision whether or not to accept the surrender. Operators of
mobile plant, Part B installations (except to the extent they relate to a waste operation),
and ‘stand alone’ water discharge or groundwater activities need only notify the regulator
of the surrender (regulation 24) and so this section is not relevant to these facilities.
7.20 The general requirements for permit surrender (Schedule 5, Part 1, paragraph 14)
are that the regulator must accept the surrender of the environmental permit if it is satisfied
that the necessary measures have been taken:
•
to avoid any pollution risk resulting from the operation of the regulated facility
(paragraph 0 below), and
•
to return the site of the regulated facility to a satisfactory state, having regard to the
state of the site before the facility was put into operation (paragraphs 0 to 0 below).
7.21 These requirements do not apply to an application to surrender a permit authorising
a radioactive substances activity at a nuclear licensed site 50 .
Avoiding pollution risk
7.22 The requirement to avoid any pollution risk must be interpreted in a proportionate
way. In practical terms, operators should tackle the risks of any pollution that could occur,
unless they are so small that further action is not justified. This might mean removal of
tanks containing pollutants, as they could rust or get damaged, so releasing the pollutants.
The site of the regulated facility
7.23 The site of the regulated facility means all of the land on which any of the facilities
covered by an environmental permit may be carried on. The site is the ‘footprint’ of the
regulated facility. This includes any land that is integral to the satisfactory operation of the
facility, for example, areas needed for the movement of materials by vehicles or other
means, and the area around any associated pipe work.
7.24 Where there is more than one regulated facility on the same site regulated under
the same permit (see the section in chapter 3 on A single permit), the site is made up of
the footprints of the individual regulated facilities.
7.25 In many cases the site of the regulated facility can simply be defined by the
perimeter fence of the facility. This is however less likely to be the case for regulated
facilities situated within larger facilities.
49
Landfill facilities and mining waste operations should not apply to surrender the permit until after the
appropriate period of aftercare.
50
The ONR has powers under the Nuclear Installations Act 1965 to impose similar requirements on nuclear
site licensees.
37
The initial state of the site of the regulated facility
7.26 The regulator requires a point of reference for judging whether there has been any
additional contamination of the site during operation of the regulated facility. The regulator
should normally attribute any additional contamination to operation of the facility.
The regulator should hold the operator responsible for any contamination on the site
unless the regulator is convinced that the operator cannot reasonably be held responsible
for it. At some sites contamination may have resulted from activities other than the
operation of the regulated facility.
7.27 The regulator should not hold the operator responsible under the Regulations for
contamination on the site that the regulator is convinced was caused:
•
before the environmental permit was issued under the Regulations for a new facility
•
before the PPC permit was issued for a facility previously regulated under the PPC
Regulations
•
before the issue of a licence under the Environmental Protection Act 1990 or under
Part I of the Control of Pollution Act 1974 for a facility previously regulated under a
waste management licence (including where the licensed site subsequently entered
the PPC regime), or
•
before the issue of a registration or authorisation under the 1960 or 1993
Radioactive Substances Acts.
7.28 For those sites that were previously regulated under a waste management licence
(see paragraph 7.28 above) the consideration should be of contamination which results
from the use of the land for the treatment, keeping or disposal of waste (whether or not in
pursuance of the waste management licence).
Satisfactory state
7.29 The regulator must ensure that the necessary measures have been taken to return
the site of the regulated facility to a satisfactory state. This can only be achieved if
operators aim to restore a site to the condition it was in before the facility was put into
operation 51 52 .
7.30 This may be significantly stricter than the ‘suitable for use’ test of the contaminated
land regime in Part 2A of the EPA 1990 and similar controls on redevelopment. While
‘suitable for use’ is appropriate for pre-existing contamination, it is not the right test for the
preventive environmental permitting regime. When applying to surrender a permit,
applicants are advised to consider whether they might be required to carry out remediation
51
Guidance on this for radioactive substances activities is available in the Radioactive Substances
Regulation Guidance.
52
Additional guidance in respect of installations covered by Chapter II of the industrial emissions Directive is
in the “Part A” Guidance.
38
under Part 2A and if so whether it would be more cost effective to undertake operations for
both purposes at the same time.
7.31 Other than in exceptional circumstances operators should remove any
contamination and return the site to the original condition 53 (see paragraphs 0 to 0 above).
However, where an operator can robustly demonstrate that is unsustainable or not
practical to do this, then the contamination should be removed as far as practicable.
7.32
The return of the site of the regulated facility to a satisfactory state should include:
•
the removal of any residual waste deposits (though clearly not for landfills or mining
waste operations for the permanent deposit of extractive waste)
•
removing as far as is practical any contamination to return the site to the original
condition, and
•
where removal is not practical - treating or immobilising contamination remedying
any harm the contamination may have caused, and mitigating the effects of any
harm.
Notification of surrender
7.33 If the operator satisfies the regulator that it has removed any pollution risks and has
restored the site to a satisfactory state, then the regulator should accept the surrender and
give the operator notice of its determination. The permit then ceases to have effect on the
date specified in the notice of determination. If the regulator is not satisfied, it has to give
notice of its determination stating that the application has been refused.
53
For a landfill, mining waste operation for the permanent deposit of extractive waste, or a near surface
disposal facility for solid radioactive waste, it is clearly not possible to return the site to the state that existed
prior to the operation of the facility.
39
8. Standard Permits
This chapter describes standard rules and their use in standard permits.
Standard rules
8.1
The Secretary of State, the Welsh Ministers 54 and the Environment Agency can
make standard rules (regulation 26).
8.2
These rules consist of requirements common to the type of facilities subject to them
(standard facilities – regulation 2) and can be used instead of site-specific permit
conditions. Standard rules would be suitable for industry sectors where a number of
regulated facilities share similar characteristics in relation to environmental hazards.
8.3
The standard rules must achieve the same high level of environmental protection as
site-specific conditions.
8.4
The rules are the conditions of the standard permit for all purposes other than for
appeals. In other words, there is no right of appeal under regulation 31(2)(b) or(c ) against
the imposition of standard rules as permit conditions (regulation 27 (3) since applying for a
permit subject to the rules is voluntary (see below). All other rights of appeal are
unaffected.
Developing standard rules
8.5
In preparing standard rules, it is necessary to consult widely with those who may be
affected by or have an interest in the rules (regulation 26 (2)), including relevant statutory
bodies. The standard nature of the facilities for which standard rules will be produced
allows a general consideration of the requirements and standards for all such facilities.
8.6
It is expected that standard rules will be developed in consultation with the relevant
industry.
8.7
Assessments of risk can be carried out nationally for common generic facilities. This
understanding of the hazards and risks posed by these facilities would form the basis for
the development of standard rules for standard facilities.
Standard permits
8.8
It is the operator's decision as to whether they wish to operate under standard rules.
Where standard rules have been made, operators of standard facilities can, if they so
wish, request that their facility be subject to the relevant rules. This request may be made
in an application for a new permit or an application to vary an environmental permit.
8.9
The generic assessments of risk for standard facilities should be made available to
applicants to assist them in determining whether their activity is within the scope of the
standard rules and, if they apply for a standard permit, in the adoption of suitable control
measures to meet those rules.
54
Defra, DECC and the Welsh Ministers do not currently intend to produce standard rules.
40
8.10 One important difference from other regulated facilities is that any additional sitespecific assessment of risk is not necessary for a standard facility. Regulated facilities that
require a location specific assessment of impact and risk are not suitable for standard
rules.
8.11 If the regulator’s assessment of an application were to indicate that this is
appropriate, it would state in the permit that the relevant rules are the conditions of the
permit (regulation 27(2)). The operation of the facility covered by the rules would then be
subject to the requirements in the rules rather than site-specific conditions. Where a permit
covers only standard facilities subject to standard rules, it can be described as a ‘standard
permit’.
8.12 A standard permit can authorise the operation of more than one standard facility
operated by the same operator (regulation 17(2)(b)).It is also possible for a single
environmental permit to authorise the operation of a standard facility (or facilities) and
other regulated facilities run by the operator on the same site (see the section in chapter 3
on A single permit). This environmental permit would not however be a standard permit.
8.13 Public consultation on applications for individual standard facilities is not required.
This reflects the fact that consultation in the development of the rules must have already
taken place (see chapter 10 on Public Consultation).
Revision and revocation of standard rules
8.14 Standard rules can be revised, and there is a duty imposed by the Regulations to
keep the rules under review (regulation 26(4)).
8.15 Where revisions are proposed, it is necessary for consultation to take place in the
same way as for the original production of the rules. This consultation is not required for
minor administrative changes to the rules (regulation 26(3)).
8.16 Where there is a proposal to revise the standard rules, operators with permits that
would be affected must be notified. Where revised rules are proposed, regulators must
normally give operators three months notice before the rules take effect (regulation 28).
Operators not wishing to operate under the revised rules can apply for a variation to their
permit before the rules take effect.
8.17 As well as being revised, standard rules can be revoked by the authority that made
the rules. Again there must be a consultation process involving the same people as in the
development of the rules (regulation 29).
8.18 Where such a revocation is to take place the regulator must vary the permit to
include suitable alternative conditions. The revoked rules continue to be conditions of the
environmental permit until the regulator varies the permit (regulation 30).
41
9. Operator Competence
This chapter describes the requirements for operator competence including the role of
management systems.
Operator competence
9.1
Operator competence supports the objectives of permitting by examining and
maintaining the operator’s ability to operate a regulated facility and fulfil the obligations of
an operator (see the chapter 5 section on The operator).
9.2
Operator competence can be considered by the regulator at any time, whether as
part of the determination of an application or at any time during the life of the permit. The
regulator may refuse an application, set permit conditions or take enforcement action,
having regard to the principles of operator competence described in this Chapter.
9.3
Following an application for the grant or transfer of an environmental permit, there is
also a specific duty on the regulator not to grant or transfer the permit if it considers that
the operator will not operate the facility in accordance with the permit (Schedule 5, Part 1,
paragraph 13) 55 . In making this decision the regulator should consider whether the
operator cannot or is unlikely to operate the facility in accordance with the permit. The
regulator might doubt whether the operator could or is likely to comply with the permit
conditions if for example:
•
the operator’s management system is inadequate
•
the operator’s technical competence is inadequate
•
the operator has a poor record of compliance with previous regulatory
requirements, or
•
the operator’s financial competence is inadequate
The following sections deal with each of these points in turn.
Management systems
9.4
In order to ensure a high level of environmental protection, operators should have
effective management systems in place. The nature of the required management system
depends upon the complexity of the regulated facility.
9.5
Complex regulated facilities are encouraged to put in place a formal environmental
management system externally certified to the international standard ISO 14001 by an
United Kingdom Accreditation Service (UKAS) accredited certification body or other
European equivalent and to register for the EU’s Eco Management and Audit Scheme
EMAS. These standards require that the management system include safeguards for legal
55
This requirement does not apply in relation to ‘stand alone’ water discharge or groundwater activities,
where for these classes, transfer to a new operator is by way of notification, not application (see paragraph
08).
42
compliance and a commitment to continuous improvement of environmental performance.
Additionally EMAS requires organisations to produce an independently validated public
report about their environmental performance and progress against targets and objectives.
Where relevant the performance should be benchmarked against European legislation,
e.g. best available techniques under Chapter II of the industrial emissions Directive..
EMAS and ISO 14001 are also recognised by the Environment Agency’s risk rating
Operator and Pollution Risk Appraisal scheme (OPRA). OPRA scores are linked to fees
and charges. Organisations which have implemented an EMS may achieve a better OPRA
score and can pay lower fees and charges.
9.6
For simpler regulated facilities, externally certified schemes or a full EMS may be
less appropriate but should still be carefully considered by operators and, where
appropriate, encouraged by regulators. The step wise approach provided by BS8555 is
particularly appropriate for smaller facilities and can make EMS implementation much
simpler. Organisations can achieve UKAS accredited certification to one or more stages of
BS 8555 under the IEMA Acorn, BSI Stems or in Wales, the Green Dragon schemes. The
European Commission has also developed a simplified implementation tool, EMAS ‘easy’,
which aims to help SMEs achieve registration for EMAS. There is also specific guidance
on management systems for some industry sectors on the website of the Institute of
Environmental Management and Assessment.
9.7
Environmental management systems have relevance to other aspects of regulation,
such as determining risk-based inspection frequencies (see section on chapter 11 on Riskbased compliance assessment). Recognised quality assurance schemes may also be
relevant, and regulators may also take account of non-certified systems where these can
be demonstrated to provide an equivalent role in safeguarding compliance and continual
improvement of environmental performance.
Box 2 – Other sources of information on Environmental Management systems
•
•
•
•
•
•
•
EMAS: www.iema.net/ems/emas and
http://europa.eu.int/comm/environment/emas
EMAS Easy: http://ec.europa.eu/environment/emas/toolkit/
ISO 14001: http://www.bsigroup.com/en/
UKAS: www.ukas.com
Acorn: www.iema.net/acorn
BSI Stems: www.bsi-global.com/en/Assessment-and-certificationservices/management-systems/Standards-and-Schemes/BS-8555STEMS/
Green Dragon: www.greendragonems.com/
Technical competence
9.8
Operators should be technically competent to operate their facility. The operator's
wider management system should contain mechanisms for assessing and maintaining
technical competence. The competence of individuals should form part of those
management systems.
43
9.9
The development of industry led competence schemes is strongly encouraged.
Scheme providers should seek advice of the relevant Sector Skills Council when
developing their scheme. All schemes should be based predominantly on qualifications
accredited by the Qualifications and Curriculum Authority, based on vocational
qualifications where these exist, and agreed with the regulator and Government.
9.10 Technical competence for operators of radioactive substances activities is based on
the ‘Qualified Expert’ provisions of the Basic Safety Standards Directive (96/29/Euratom).
This is covered in the Guidance on Radioactive Substances Regulation. For operators of
Part B installations technical competence is covered in the Manual (Chapter 12).
Relevant waste operations: approved schemes
9.11 For relevant waste operations, a Certificate of Technical Competence (CoTC),
remains an appropriate means of demonstrating technical competence. Any schemes
developed in addition must be:
•
effective in developing and demonstrating technical competence across a sector or
sectors and provide equivalent competence with other schemes approved for the
sectors(s)
•
risk-based and proportionate
•
able to provide mechanisms for demonstration and assessment of both initial
competence and continuing competence
•
based on good operational practice and appropriate legislative requirements
•
based on individual competence and offer individuals and organisations choices in
how they demonstrate and maintain competence
•
based consistently on National Occupational Standards where these exist
•
cater for the evolving complexity and diversity of the waste and resources
management sector
•
applicable to all relevant waste management operations, or where appropriate to all
operations within the sectors for which the scheme is designed
•
inclusive, and must not prevent new entrants from developing necessary
competences in the workplace
•
not perpetuate a reliance on deemed competence.
9.12 Approved schemes for operators of relevant waste operations that meet the above
criteria are:
•
The CIWM / WAMITAB scheme that has been jointly developed by the Chartered
Institution of Wastes Management (CIWM) and the Waste Management Industry
Training and Advisory Board (WAMITAB); and
•
The ESA / EU Skills scheme that has been jointly developed by the Environmental
Services (EAS) and the Energy and Utility Sector Skills Council (EU Sector Skills).
44
9.13 The Environment Agency will be required to make an assessment of the technical
competence of operators who have made a permit application for a relevant waste
operation that is outside the scope of the CoTCs and where there is no appropriate
alternative scheme in place.
9.14 Operators who are required to obtain a permit for the first time as result of the
review of waste exemptions, are subject to transitional arrangements ending on 1 Oct
2013. The date is to be found in regulation 103 of the Regulations, although the date
depends on which of the previous exempt operations (drawn from EPR 2007) are being
undertaken. For further information on this see the Guidance on Exempt Waste
Operations.
Poor record of compliance with regulatory requirements
9.15 In assessing operator competence the regulator may also consider whether the
operator or any other relevant person (see below) has a poor record of compliance with
regulatory requirements. These considerations will include, but are not restricted to,
evidence of convictions for relevant offences. Other considerations may include receipt of
formal enforcement notices such as enforcement or suspension notices or a history of, or
acute, non-compliance with permit condition(s). In this context, a ‘relevant offence’ is any
conviction for an offence relating to the environment or to a person’s conduct as the
operator of a waste facility.
9.16
A ‘relevant person’ in relation to a conviction for a relevant offence would include:
•
the operator (i.e. the ‘legal person’ holding or applying for the permit – a person,
persons in a partnership, or a corporate body)
•
a director, manager, secretary or other similar officer of an operator (when it is a
corporate body) and a partner in a limited liability partnership (LLP), who has either
been convicted of a relevant offence themselves, or who held a position in another
corporate body or LLP when it was convicted of a relevant offence.
9.17 The regulator must not grant or transfer a permit to persons it considers will not
operate the facility in accordance with the permit. This may include persons who have
such a poor record of compliance with regulatory requirements that it appears unlikely that
they would comply with permit conditions. Similar considerations could, equally, lead to
revocation of existing permit(s).
9.18 Refusal would normally be appropriate for offences that demonstrate a deliberate
disregard for the environment or for environmental regulation for example where there are
repeated convictions, or deliberately making false or misleading statements.
9.19 The regulator must take into account the terms of the Rehabilitation of Offenders
Act 1974. The Act applies only where an individual has been convicted of an offence.
However, where the person convicted is a corporate body, the regulator should have
regard to whether the conviction would have been spent if it had been committed by an
individual and should normally treat the corporate body in the same way.
9.20 If it thinks it right to do so, the regulator may still decide to grant or transfer a permit,
or to allow a permit to continue in force, even though an operator has demonstrated a
poor record of compliance with regulatory requirements such as being convicted of a
relevant offence.
45
Financial competence
9.21 The operator of any regulated facility should be financially capable of complying
with the environmental permit.
9.22 Specific provisions apply to landfill facilities (see Guidance on the Landfill Directive),
mining waste facilities (see Guidance on the Mining Waste Directive) and radioactive
substances activities (see the section on high-activity sealed sources in the Guidance on
Radioactive Substances Regulation). For all other classes of regulated facility, regulators
should only consider financial solvency explicitly in cases they have reason to doubt the
financial viability of the activity.
Maintaining competence
9.23 Operators must maintain the standards of their management systems and
competence throughout the regulated facility’s life. Regulators can impose permit
conditions to ensure this.
9.24 Regulators can reassess competence at any time and if not satisfied can revoke the
permit (see the section in Chapter 11 on
Revocation). In particular, if the operator of a relevant waste operation fails to comply
with an approved competence scheme, the regulator may revoke the permit.
46
10. Consultation and public participation
This chapter covers the requirements for consultation with the public.
10.1 Consultation serves to inform the public (and other interested bodies) so that they
can make informed comments to the regulator allowing the regulator to make better
decisions.
10.2 Regulators must take into consideration any representations made by consultees
during the allowed time periods.
Consulting the public
10.3 The Regulations require consultation with the public on environmental permit
applications but do not prescribe the methods of consultation. This allows proportionate
and flexible approaches to public participation to be developed by the regulators.
10.4 The meaning of ‘public consultee’ is given in Schedule 5, Part 1, paragraph 1 to the
Regulations and includes anyone who the regulator considers will be (or is likely to be)
affected by the application and anyone who will have an interest in the application.
10.5 Public participation is provided for where there is an application for an
environmental permit (Schedule 5, Part 1, paragraph 5). This requirement to consult does
not apply to permit applications for:
•
mobile plant;
•
standard permits;
•
certain small Part B installations,
•
a mining waste operation not involving a mining waste facility to which Article 7 of
the Mining Waste Directive applies 56 ; or
•
radioactive substances activities involving mobile radioactive apparatus.
10.6 Mobile plant and radioactive substances activities that involve mobile radioactive
apparatus can operate at different locations and therefore local involvement cannot be
meaningfully provided at the application stage. The permitting requirements for standard
rules have been set out above (see chapter 8 on Standard Permits). These require that
consultation takes place on the production (and review) of the rules rather than on
individual applications. Public consultation is not required for applications for small waste
oil burners, dry cleaners and some Part B activities associated with petrol unloading and
Article 8 of the Mining Waste Directive requires public participation in relation to mining
waste facilities requiring a permit under Article 7
56
47
motor vehicle refuelling (Schedule 5, Part 1, paragraph 5(4)). For mining waste operations,
public participation is only required where the Mining Waste Directive requires it 57 .
10.7 Substantial changes to Part A installations must be consulted on (see the Guidance
on Part A installations 58 ). The requirement to consult on a substantial change applies both
to variation applications by the operator and variations initiated by the regulator (Schedule
5, Part 1, paragraph 5(2)(a) and 5(3)(a)). There must also be consultation in respect of
part A installations in cases where the regulator proposes to grant a derogation under
Article 15(4) of the industrial emissions Directive 59 .
10.8 The regulator may decide that other variations to environmental permits should also
be subject to public consultation (Schedule 5, Part 1, paragraph 5(2)(b) and5(3)(b)).
10.9 Any information that is to be excluded from the public register in the interests of
national security or because it is commercially or industrially confidential (see chapter 14
on Public registers and information) must not form part of the public consultation.
The Environment Agency's public participation statement
10.10 The Environment Agency 60 must prepare a statement of its policies on Public
Participation (regulation 59) 61 . These policies must relate to the Agency`s duties in relation
to determining applications and making standard rules.
10.11 In preparing or revising the statement the Environment Agency must consult those
people it considers will be or are likely to be affected by the statement and who will have
an interest in the statement. This consultation will be in accordance with the Cabinet Office
guidelines on consultation. The Environment Agency must review and revise the statement
as appropriate.
57
See Chapter 5 of the Mining Waste Directive Guidance. Available at:
http://archive.defra.gov.uk/environment/policy/permits/guidance.htm#ep
58
Available at www.opsi.gov.uk/si/si200735
59
The operation of this derogation is explained in detail in the “Part A” Guidance.
60
The situation for Local Authority consultation can be found in the Manual
http://archive.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/notes/index.htm#ep
61
Working together: your role in our environmental permitting decision making www.environmentagency.gov.uk/epr
48
11. Compliance Assessment, Enforcement
and Review
This chapter describes the powers and duties of the regulator (and the operator) in
ensuring compliance with the regulations and permit conditions.
Compliance assessment
Risk-based compliance assessment
11.1
•
Risk-based compliance assessment should include:
targeting those facilities that:
o pose the greatest risk to the environment or human health
o have poorer standards of operation
o are failing to comply with the terms and conditions of the permit, or
o are having a greater adverse impact
•
reducing the regulatory burden on operators whose standard of operations are
consistently high, and
•
taking into account the different stages in the lifetime of a facility.
11.2 The Environment Agency should maintain guidance on a risk-based approach to
compliance assessment 62 . This should take into account the operator’s management of the
facility.
Methods of compliance assessment
11.3 The operator is responsible for ensuring that its regulated facility does not cause
pollution of the environment and harm to human health. Checking compliance with the
terms and conditions of the permit is the principal way in which the operator’s performance
in relation to that responsibility should be assessed. In addition, the regulator should also
audit the operator's systems for the management and supervision of the facility.
11.4 The Regulations place a duty on regulators to undertake appropriate periodic
inspections of regulated facilities (regulation 34(2)) 63 . There is also a duty on the exemption
registration authority (see chapter 15 on Exempt facilities) to carry out periodic inspections
of exempt waste operations (Schedule 2, paragraph 15).
62
Available at http://www.environment-agency.gov.uk/business/regulation/31823.aspx
Part A installations are subject to minimum inspection requirements through subjection to Article 23 of the
industrial emissions Directive, as described in the “Part A” Guidance.
63
49
11.5 This inspection process can include reviewing information from the operator as well
as carrying out independent monitoring, site inspections, in-depth audits and other
compliance-related work.
11.6 In its procedures for the environmental permitting regime the regulator should have
regard to the Recommendation of the European Parliament and of the Council
(2001/331/EC) of 4 April 2001 on the minimum criteria for environmental inspection 64 .
11.7 Operators may also have significant responsibility for monitoring under
environmental permits. The permit conditions may require operators not just to provide
basic data (for example, the actual results from monitoring equipment), but also to
demonstrate whether they are meeting the conditions of the permit.
Enforcement
Enforcement notices
11.8 Regulation 36 of the Regulations allows the regulator to serve an ‘enforcement
notice’ if it believes an operator has contravened, is contravening, or is likely to contravene
any permit conditions.
11.9 Enforcement notices will specify the steps required to remedy the problem and the
timescale in which they must be taken. Enforcement notices may include steps to remedy
the effects of any harm and to bring a regulated facility back into compliance.
Suspension notices
11.10 If the operation of a regulated facility involves a risk of serious pollution, the
regulator may serve a ‘suspension notice’ under regulation 37(2) of the Regulations. This
applies whether or not the operator has breached a permit condition. A suspension notice
may also be served by a local authority regulator for non payment of a charge. Guidance
on this is contained in the Manual.
11.11 The suspension notice must describe the nature of the risk of pollution and the
actions necessary to remove that risk. The notice must specify the deadline for taking
actions.
11.12 When the regulator serves a suspension notice, the permit ceases to authorise the
operation of the entire facility or specified activities depending upon what is specified in the
notice.
11.13 A suspension notice should allow activities to continue unless their cessation is
necessary to address the risk of pollution. While the suspension notice is in force,
additional steps may need to be taken in relation to any activities that are allowed to
continue. Where this is the case the suspension notice must set out these additional steps.
64
Available at http://eur-lex.europa.eu/LexUriServ/site/en/oj/2001/l_118/l_11820010427en00410046.pdf
50
11.14 When the operator has taken the remedial steps required by the notice, the
regulator must withdraw the notice.
Prosecutions
11.15 If an operator has committed a criminal offence under the Regulations, regulators
should consider a prosecution. Conviction in a magistrates’ court carries a fine of up to
£50,000 and up to twelve months’ imprisonment for the most serious offences under the
Regulations. Conviction in the Crown court for those offences may lead to an unlimited fine
and imprisonment for up to five years.
11.16 Regulators have clear guidance on the factors to take into account when deciding
whether to prosecute. Regulators should take account of the Regulators’ Compliance
Code 65 and Cabinet Office Enforcement Code 66 and the Attorney General's Code for Crown
Prosecutors 67 . These contain important safeguards for operators to ensure that the
enforcement action taken by regulators is proportionate to the risks posed to the
environment and to the seriousness of any breach of the law.
11.17 The Environment Agency’s enforcement and prosecution policy sets out a range of
possible enforcement actions 68 . These range from warnings to formal cautions to
prosecution depending upon the facts. Individual local authorities should also have
enforcement policies.
11.18 The Regulations also contain another important safeguard for operators, the
emergency defence (regulation 40(1)). This provides a defence where the operator shows
that the acts are done in an emergency to avoid danger to human health, all reasonable
steps are taken to minimise pollution and the regulator is informed promptly. Emergencies
ought to be relatively rare occurrences.
11.19 Where an environmental permitting regulator and another enforcement body both
have the power to prosecute in respect of the same subject matter, they should endeavour
to liaise to avoid inconsistencies and make sure that any proceedings are for the most
appropriate offence.
11.20 The regulator must place details of any conviction or formal caution on the public
register. This requirement does not override the Rehabilitation of Offenders Act 1974
regarding spent conditions, and regulators must take care to remove relevant entries at the
appropriate time (Details of the time periods are on the NACRO 69 website). Formal
cautions must be removed from the register after 5 years has lapsed. It is important that
the regulators have the systems in place to ensure that this is done.
Revocation
65
Available at http://www.berr.gov.uk/files/file45019.pdf
http://www.lbro.org.uk/docs/regulators-compliance-code.pdf
67
http://www.cps.gov.uk/publications/docs/code2010english.pdf
68
Available at http://www.environment-agency.gov.uk/business/regulation/31851.aspx
69
Available at http://www.nacro.org.uk
66
51
11.21 The regulator can revoke a permit, in whole or in part, by serving a ‘revocation
notice’ (regulation 22). The regulator may use revocation whenever appropriate.
Revocation may be appropriate where exhaustive use of other enforcement tools has
failed to protect the environment properly, where the permit holder is no longer the
operator (ie a transfer application should have been made but has not been) or where the
operator is considered not to be competent (see Chapter 9). Unlike other types of notice, if
a revocation notice is appealed the revocation does not take effect until the appeal is
determined or withdrawn (regulation 31(9)).
11.22 The permit ceases to authorise the operation of a regulated facility, facilities or part
of a facility to the extent specified in the revocation notice. Any post-operation
requirements, such as site restoration, may remain in force (regulation 22).
11.23 The revocation notice must specify any additional steps the operator must take to
avoid any pollution risk or to return the site to a satisfactory state. Regulators may enforce
the restoration requirements by issuing enforcement notices and if necessary they can use
their powers to remedy harm and recover costs (see the section on
Remediation).
Remediation
70
11.24 If a regulated facility gives rise to a risk of serious pollution, a regulator may arrange
for the risk to be removed under regulation 57. If an operator commits an offence that
causes pollution, the regulator may arrange for steps to be taken to remedy pollution at the
operator’s expense.
11.25 Site protection must be addressed throughout the life of a permit. Restoration of the
site at closure cannot justify letting the operator contaminate the site during the operation
of the facility. It will not usually be desirable to wait until the regulated facility ceases to
operate before removing any contamination or remedying any harm at the site.
11.26 Where an incident such as a spillage occurs, the regulator should be notified and
the operator should take all practical steps to address any contamination at the time of the
incident. A record of the steps taken to return the site to a satisfactory state should be
made available to the regulator.
Enforcement against the Crown
11.27 The Crown is bound by the Regulations, as are people who work for it. However,
the Crown is not criminally liable even if it contravenes the Regulations. The regulator
cannot take proceedings to the High Court if the Crown does not comply with an
enforcement or suspension notice. However, the regulator may apply to the High Court to
have something the Crown has done (or failed to do) declared unlawful if it contravenes
the Regulations. These provisions are set out in Schedule 4 to the Regulations. Special
provisions apply in the case of radioactive substances activities (see the Guidance on
Radioactive Substances Regulation).
70
Special arrangements apply in the case of remediation of radioactive contamination on a nuclear site: see
the Nuclear Installations Act 1965 and associated guidance.
52
Ongoing review
Variation of conditions by the regulator
11.28 The regulator may vary permit conditions at any time, even if the operator has not
requested this (regulation 20), except in certain circumstances in the case of a stand-alone
water discharge activity 71 . It is most likely to do this in response to the findings of a permit
review (see paragraphs 0 to 0), because additional conditions are needed to deal with new
matters or where compliance assessment has identified a need to vary the conditions.
11.29 A variation may however be necessary for another reason, such as a new
environmental quality standard (EQS). A local authority regulator will also need to vary the
permit conditions on releases to water from a Part A installation regulated by the authority
if the Environment Agency requests this under regulation 58 (see paragraph 0).
11.30 Where the regulator decides to vary permit conditions, it will serve a variation notice
and may require the operator to pay a fee. (Schedule 5, Part 1, paragraph 8).
The regulator will consult on a proposed variation notice, in much the same way as when
the operator applies for a variation. Regulators can assess competence at any time and if
not satisfied can revoke the permit. In particular, if the operator of a relevant waste
operation fails to comply with an approved competence scheme, the regulator may revoke
the permit.
Permit reviews
11.31 Regulators are required to review permits periodically (regulation 34). Permit
reviews are required to check whether permit conditions continue to reflect appropriate
standards and remain adequate in light of experience and new knowledge. Reviews
should guard against permits becoming obsolete as techniques develop.
11.32 Regulators should review permit conditions in the light of new information on
environmental effects, best available techniques or other relevant issues.
•
If a review shows that new or varied permit conditions are needed, the regulator
determines them by the regulator initiated variation procedures above (
Variation of conditions by the regulator).
• The Regulations do not define when regulators should carry out permit reviews,
except in relation to groundwater activities, where relevant permits must be
reviewed by 22 December 2012, and in relation to Part A installations through
subjection to Article 21(3) of the industrial emissions Directive 72 . The Environment
Agency will determine when to carry out reviews, having regard to its experience of
regulating the various sectors. Local authorities may be guided in making their
decisions by advice from the Secretary of State. Regulators should inform operators
at the start of a review so that they are able to input into the review process.
71
see the Guidance on Water Discharge Activities
Article 21(3) of the industrial emissions Directive links permit reviews to the publication of BAT
Conclusions, as further described in the “Part A” Guidance.
72
53
12. Charging
This chapter describes the system of charging for environmental permits.
12.1
Two separate but related sets of charging schemes apply to regulated facilities:
•
for facilities where the Environment Agency is the regulator, under Section 41 of the
Environment Act 1995 and approved by the Secretary of State, and
•
for facilities where the local authority is the regulator, set by the Secretary of State
and the Welsh Ministers under regulation 65.
12.2 Within this overall arrangement, different charges are payable at different regulatory
stages. They will also vary across sectors. Further details are available from regulators or
from Defra and the Welsh Government.
Charges for applications
12.3 Applications will normally incur charges. Where an operator must pay a charge
when submitting an application, the regulator must receive this before the application can
be considered duly made. If the regulator judges that an application accompanied by
payment is not duly made, it would normally return the charge to the applicant.
12.4 Regulators must allow for different charges for different categories of variation
application. This is to allow an approach that can reflect the:
•
amount of effort that the regulator has to put into determining the application
•
the potential environmental impact or risk, and
•
the necessary degree of public participation.
Subsistence
12.5 Operators must pay subsistence charges to support the regulator’s ongoing costs
for such things as checking monitoring data or compliance assessment. If an operator fails
to pay a subsistence charge, the regulator may revoke the permit.
54
13. Appeals
This chapter sets out when an appeal can be made and the procedures for making
appeals.
Appeal procedures
When can an appeal be made?
13.1
A person may appeal (regulation 31) when:
•
the regulator has refused their application for the grant of a permit 73 .
•
the regulator has refused their application for a variation of a permit
•
the regulator has refused their application to transfer or surrender the permit
•
they disagree with the conditions imposed by the regulator in their permit
•
an application is deemed to have been refused (see Schedule 5, Part 1, paragraph
15(1))
•
the regulator has deemed an application to be withdrawn
•
the regulator has decided not to authorise the closure procedure mentioned in
Article 13 of the Landfill Directive or Article 12 of the Mining Waste Directive
•
the regulator has served a revocation, enforcement, suspension or prohibition
notice, or a landfill or mining waste facility closure notice on them
•
the regulator has determined that certain information in relation to their application
or permit must be included on the public register (regulation 53).
13.2 Time limits for making appeals vary according to the basis of the appeal (Schedule
6, paragraph 3). The Secretary of State or the Welsh Ministers have the power to extend
some of the limits, but would only do so in the most compelling circumstances.
13.3
An appeal must be made:
•
before a revocation notice takes effect
•
within two months from the date of a suspension, enforcement, mining waste facility
closure or landfill closure notice or a regulator initiated variation
•
no later than 15 working days after receiving notice that an application is deemed to
be withdrawn (Schedule 5, Part 1, paragraph 4(2)) or receiving notice that certain
information must be included on the public register (regulation 53), or
unless the refusal was made under Schedule 20, paragraph 14(2) in relation to an
existing Category A mining waste facility.
73
55
•
in all other cases within six months of the date of the decision or deemed decision.
Who should an appeal be made to?
13.4
Appeals must be made to the Secretary of State or the Welsh Ministers.
13.5 The Secretary of State and the Welsh Ministers may appoint the Planning
Inspectorate (PINS) to determine appeals 74 . The Secretary of State or the Welsh Ministers
can however recover any appeal. This would be an exceptional step and likely to be taken
only if the appeal meets particular criteria (see the Planning Inspectorate Appeal
Procedure Guidance for Environmental Permits, Appendix 2).
13.6 The Planning Inspectorate has produced separate guidance on appeals for
environmental permitting 75 . A failure to follow the procedure set out in that guidance may
lead to adverse costs implications.
While the appeal is being considered
13.7 If a person appeals against a revocation notice, the revocation does not take effect
until the appeal has been determined or withdrawn (regulation 31(9)), except in certain
circumstances in relation to ‘stand alone’ water discharge activities 76 .
13.8 If the appeal is against a permit condition, variation, enforcement, suspension,
prohibition, landfill closure or mining waste facility closure notice, then the notice or
condition must be complied with until the appointed person or the Secretary of State or the
Welsh Ministers has determined the appeal (regulation 31(9)), except in certain
circumstances in relation to ‘stand alone’ water discharge activities.
Who should be informed that an appeal has been made?
13.9 Following receipt of the notice of appeal (other than against a decision on
commercial confidentiality), the regulator should contact anyone it thinks may be affected
by or has a particular interest in the matter (Schedule 6, paragraph 4). The regulator
should ensure that the relevant people are informed as to the nature of the appeal and are
made aware that representations can be made in writing to the appointed person or the
Secretary of State or the Welsh Ministers.
13.10 The regulator should tell the appointed person or the Secretary of State or the
Welsh Ministers who it has notified of the appeal and when (Schedule 6, paragraph 4 (3)).
Conducting an appeal
13.11 An appeal may be conducted by written representations, or through a hearing or
inquiry under the control of the Secretary of State or the Welsh Ministers' appointee.
All parties have the right to request a hearing and one will also be held if the Secretary of
State or the Welsh Ministers or their appointee decides one is necessary. Each appeal
74
Section 114 of the Environment Act 1995
Available at: www.planning-inspectorate.gov.uk/
76
See the Guidance on Water Discharge Activities
75
56
procedure will be conducted in the spirit of the rules and Regulations for planning
appeals 77 .
Withdrawing an appeal
13.12 An appellant may withdraw an appeal at any time by giving notice in writing to the
Secretary of State’s or the Welsh Ministers' appointee, copied to the regulator.
The Secretary of State’s or the Welsh Ministers’ appointee should tell anyone with an
interest in the appeal that it has been withdrawn.
13.13 The regulator should inform all the people it notified of the appeal (Schedule 6,
paragraph 4 (4)).
Costs
13.14 The appellant and regulator will normally be expected to pay their own expenses
during an appeal. However where a hearing or inquiry is held, either the appellant or the
regulator can apply for costs.
13.15 Following an application for costs, the appointed person or the Secretary of State in
England will act in the spirit of Circular 03/09 “Costs Awards in Appeals and other Planning
Proceedings”. In Wales the Welsh Ministers will act in the spirit of Welsh Office Circular
23/93 “Awards of Costs incurred in Planning and other (including compulsory purchase
order) proceedings”.
13.16 Applications for costs will only be allowed if the party claiming them can show that
the other side behaved unreasonably and put them to unnecessary expense.
Appeal decisions
13.17 After the exchange of written representations has been completed or the hearing or
inquiry held, the appointed person will either make a decision or report their conclusions
and recommendations to the Secretary of State or the Welsh Ministers for determination.
13.18 The appointed person or the Secretary of State or the Welsh Ministers may dismiss
the appeal or may uphold the appeal in total or in part. They may quash or vary any notice.
They may also direct the regulator on what permit conditions to impose.
13.19 If the appeal is dismissed, the original decision by the regulator continues in force.
Where the original decision has been ineffective during the appeal (i.e. for a revocation
notice), the regulator's decision becomes effective from the end of the day on which the
appeal is dismissed or withdrawn.
13.20 If the appeal is upheld, either in total or in part, the regulator has a duty to give
effect to that decision. Consequently, where the regulator grants a permit or issues a
77
The Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations
2000 (SI 2000 No. 1628); Town and Country Planning (Hearings Procedure) (England) Rules 2000 (S.I.
2000 No.1626); The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000
No.1624) and The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure)
(England) Rules 2000 (SI 2000 No.1625).
57
variation notice following an appeal, such a notice should include reference to the fact that
the decision is giving effect to a determination by the appointed person or the Secretary of
State or the Welsh Ministers.
13.21 The regulator should take into account relevant appeal decisions when reviewing
and developing the conditions to be attached to permits.
13.22 Appeal decisions may be challenged by judicial review on a point of law.
58
14. Public registers and information
This chapter sets out the duty on the regulators to maintain public registers for
environmental permits and makes reference to other sources of information on
environmental permitting.
14.1 Information relevant to environmental permitting is available through public registers
and under the Freedom of Information Act (FOIA) 78 and the Environmental Information
Regulations (EIR) 79 .
14.2 In order to ensure that information is readily and easily available for the purposes of
public participation under the Regulations, regulators are required to maintain public
registers of specified information on environmental permitting.
14.3 Under the FOIA, public authorities are required to maintain publication schemes
and publish information they hold in accordance with those schemes. Under both FOIA
and EIR there is a statutory duty to respond to requests for information and provide advice
and assistance.
14.4 The following sections cover the specific requirements for public registers and the
relevant aspects of other information legislation.
Public registers
Duty to maintain public registers
14.5 Regulators must maintain registers containing information on all the regulated
facilities for which they are responsible (regulation 46).
14.6 Local authorities’ registers must also include information on facilities in their areas
regulated by the Environment Agency (other than mobile plant or stand-alone water
discharge or groundwater activities). The Environment Agency must provide this
information to the relevant local authority (regulation 46(6)) 80 .
14.7 The registers must be available for inspection by the public (free of charge) at all
reasonable times (regulation 46(9)(a)). Copies of any entry on a register must be available
to any member of the public on payment of a reasonable charge (regulation 46(9)(b)).
Where information is excluded from the register on grounds of confidentiality, a statement
must be placed on the register indicating the existence of that information (regulation
46(8)).
78
Freedom of Information Act 2000, ss.19,20.
Environmental Information Regulations 2004 S.I. 2004/3391, Reg. 4.
80
Under review – these requirements may be removed subject to the response to public consultation.
79
59
Form and content of registers
14.8 The register can be of any form (regulation 46(10)), but should allow proper public
access. Regulators generally may choose 81 , for example, to maintain computerised or
internet based registers. If they do, they should make sure that they provide help for
members of the public who are unfamiliar with the technology.
14.9 Registers must contain the information set out in Schedule 24, paragraph 1 to the
Regulations. This includes copies of permits, applications, enforcement notices and
monitoring information.
14.10 The regulator is not required to place information relating to criminal proceedings on
the register while the proceedings are in progress (regulation 46(2)).
Withdrawal of information
14.11 Schedule 24, paragraph 2 to the Regulations states that a regulator is not required
to keep in its register any information which is no longer relevant for the purposes of public
participation. This will enable the regulator to remove unnecessary information to make the
register easier to consult.
14.12 It should be noted that although unnecessary information may have been removed
from the public register, the information may still be available from the regulator either
through the publication scheme or in response to information requests under the Freedom
of Information Act or the Environmental Information Regulations (see the section on Other
information legislation).
National security
14.13 No information should be included in a register if, in the opinion of the Secretary of
State or the Welsh Ministers, the inclusion of that information in the register would be
contrary to the interests of national security (see regulation 47).
14.14 For this to happen, the Secretary of State or the Welsh Ministers must determine
that placing the information on the register would be against the national interest. The
Secretary of State or the Welsh Ministers may direct the regulator to exclude specified
information (or a specified description of information) from the register (regulation 47(1)).
14.15 The Secretary of State or the Welsh Ministers may direct the regulator to refer a
specified description of information to him for his determination before its inclusion on the
register (regulation 47(3)).
14.16 The operator (or any other person, including the regulator) may notify the Secretary
of State or the Welsh Ministers that, in their opinion, the inclusion of information on a
register would be contrary to the interests of national security (regulation 47(4)). The
operator (or other notifying person) must let the regulator know that it has notified the
Secretary of State or the Welsh Ministers. The operator must not however exclude that
81
Except in respect of Part A installations, for which Article 24 of the industrial emissions Directive compels
use of the Internet.
60
information from any submission to the regulator, such as a permit application. The
regulator must keep this information out of the register unless the Secretary of State or the
Welsh Ministers determines that it should be included (regulation 47(7)).
Commercial and Industrial confidentiality
14.17 Information may be withheld from the public registers where the regulator judges
that it may be commercially or industrially confidential (regulation 48). When this occurs a
statement must be placed on the register indicating the existence of that information.
‘Confidential information’ is defined in regulation 2 as information that is commercially or
industrially confidential in relation to any person.
14.18 The possible exclusion of information from the register can be triggered where:
•
the regulator decides that the information may be commercially or industrially
confidential (regulation 51), or
•
anyone objects (‘the objector’) 82 to the inclusion of information on the grounds of
commercial or industrial confidentiality. This is called an ‘objection notice’.
14.19 If an operator wants confidential information to be excluded from the register, it
should make a request at the time the information is submitted, whether as part of an
application, as monitoring information, or for any other purpose. The operator should
provide clear justification for each item it wishes to be kept from the register. It will not be
enough, for example, merely to assert commercial prejudice: they must provide
substantiation that the confidentiality is provided by law to protect a legitimate economic
interest.
14.20 The amount of information asked to be excluded from the register should be kept to
the minimum necessary to safeguard the operator's commercial advantage.
14.21 The operator should make sure that any information which they consider
confidential is readily identifiable. It may assist the regulator if the information the operator
wishes to be excluded is submitted in a way which will allow it to be easily removed should
the claim be granted: for example on separate pages, marked ‘claimed confidential’.
14.22 The regulator must reach a decision on whether information must be withheld from
the register within 20 working days (or such longer period as is agreed with the operator)
of:
•
the date when the operator requests information to be excluded under regulation
48(1)(b), or
•
the date when the operator objects to information being included after a notification
by the regulator under regulation 49(1), or
•
the date 15 working days onward from when the regulation 49(1) notice is given if,
by then, no response has been received to the 49(1) notice.
82
The objector will invariably be the operator, but could be, for example, someone who supplies information
to the operator. Whoever objects is referred to in Part 5 of the Regulations as ‘the information subject’, but
for simplicity in the rest of this chapter it is assumed that it will be the operator.
61
14.23 The regulator may only determine requests based on the information provided to it.
If the information provided does not clearly demonstrate that information should be
legitimately protected, the regulator must determine that it is not confidential. The regulator
must always determine that information relating to “emissions” must be included on the
register (regulation 51(3)).
14.24 In reaching its decision, or ‘determination’, the regulator must apply the legal criteria
and:
•
take account of any reasons given by the operator in any objection notice
•
apply a presumption in favour of putting the information on the register, and
•
exclude only information that is commercial or industrial information; its
confidentiality is provided by law to protect a legitimate economic interest; and
taking account all circumstances, the public interest in maintaining the
confidentiality of the information outweighs the public interest in including it on the
register.
14.25 The Regulations enable other information to be withheld if it cannot reasonably be
separated for the purposes of inclusion on the register (regulation 51(4)).
14.26 If a determination is made regarding the confidentiality of monitoring information
and the information is to be withheld from the public register, Schedule 24, paragraph 1(4)
to the Regulations requires a statement in the register indicating whether the operator has
complied with permit conditions.
14.27 If the regulator fails to notify the operator of its determination within the 20 working
days (or agreed longer period) referred to above, the operator may write to the regulator
confirming that the request has not been determined. Such a notice automatically triggers
a deemed decision to place the information on the register and the right of appeal against
this decision. The operator may appeal within 15 working days of the date of the deemed
decision (i.e. the notice).
14.28 Whether the regulator has actively determined that information is not confidential, or
there has been a deemed determination, the information must be kept from the register for
a further 15 working days. This is the period within which an appeal may be made to the
Secretary of State or the Welsh Ministers (regulation 53). If no appeal has been made
within that time, the information must be put on the register.
14.29 An appeal against the inclusion of information on the public register must be made
to the Secretary of State or the Welsh Ministers (see chapter 13 on Appeals).
14.30 If an appeal is made to the Secretary of State or the Welsh Ministers, the
information in question must not be placed on the public register before the appeal is
decided (regulation 53(3)).
14.31 The Regulations require that the regulator may only grant confidentiality for up to
four years (regulation 55). The regulator can specify a shorter period when they make the
original decision.
62
14.32 An operator must re-apply for commercial confidentiality before the end of the four
years (or shorter period). If the operator does not do so, the regulator must place all
previously commercially confidential information on the public register.
14.33 It is recommended that the regulator should write and inform operators that the end
of the time period is approaching, allowing sufficient time for re-application. However
operators should not rely on the regulator providing this service.
Other information legislation
14.34 The Freedom of Information Act (FOIA) and Environmental Information Regulations
(EIR) provide a system of fully enforceable rights of access to information held by public
authorities.
14.35 The FOIA gives a statutory right of access to all types of recorded information and
data held by public authorities on request. It also places a duty on public authorities to
make information available pro-actively through a publication scheme.
14.36 The EIR provide extra rights of access to environmental information, with a wide
definition of what is environmental. Under the EIR there is duty to progressively make
information available to the public by electronic means, organising information with a view
to the active and systematic dissemination of the information to the public. Where an
information request is for environmental information, there is an exemption under the FOIA
so that the EIR apply. The EIR will apply to most of the information held by regulators.
14.37 There are several ‘exemptions’ under the FOIA and ‘exceptions’ under the EIR from
rights of access (for example personal data and commercial confidentiality) that balance
openness with confidentiality and privacy.
14.38 Further information on access to information can be found in the Defra, guidance
EIR 2004 Detailed Guidance 83 , from the Information Commissioner’s Office 84 and from the
Ministry of Justice 85 .
83
Available at http://archive.defra.gov.uk/corporate/policy/opengov/eir/guidance/full-guidance/index.htm#
http://www.ico.org.uk/
85
www.dca.gov.uk/foi/index.htm
84
63
15. Exempt facilities
This chapter describes the general requirements for exempt facilities and the
requirements for registering exemptions and keeping records. Further guidance on
exempt waste operations is provided in the Guidance on Exempt Waste Operations 86 .
This chapter does not apply to radioactive substances activities. Guidance on exempt
radioactive substances activities is provided in the Guidance on the Scope of and
Exemptions from the Radioactive Substances Legislation in the UK.
15.1
Some facilities that pose a sufficiently low risk can be exempt from the need to
hold a permit. However this is only where any applicable European Directive allows it. A
waste operation, water discharge or groundwater activity must meet certain criteria in
order to be exempt from the need for an environmental permit. This is set out in the
Regulations.
15.2
A facility can only be exempt if it meets the requirements of Schedule 2. In the
case of waste operations, one of these requirements is that the operation must meet the
objectives in Article 24 of the revised Waste Framework Directive 87 which gives Member
States the discretion to provide exemptions from the requirement of a permit. Exempt
waste operations must comply with general rules governing the operations; establishments
and undertaking ( but not private individuals) must register with the relevant authority.
15.3
The compliance effort for exempt facilities should follow the same principles as for
regulated facilities (see chapter 11 on Compliance Assessment, Enforcement and
Review).
Registration of exempt facilities
15.4 A waste operation can only be exempt from the need to hold a permit where an
establishment or undertaking has been registered in relation to the operation (Schedule 2,
paragraph 3(1)). In the case of a water discharge activity or groundwater activity either the
occupier or operator must register, depending on the description of activity.
15.5 The exemption registration authority for each type of exempt facility is identified in
Schedule 2, paragraph 2 to the Regulations.
15.6 The regulator is required to maintain a register of exempt facilities and relevant
particulars (Schedule 2, paragraph 7). This is only required where the registration authority
has been notified of the facility. Entries must be removed from the register in certain
circumstances including where the exempt facility is no longer in operation or has ceased
to be an exempt facility (Schedule 2, paragraph 8). The Secretary of State or the Welsh
Ministers may direct the exemption registration authority that information must be excluded
from the register on the grounds of national security (Schedule 2, paragraph 9).
86
Available at: www.defra.gov.uk/environment/policy/permits/guidance.htm
Directive 2008/98/EC on waste available in Waste Framework Directive Guidance:
http://archive.defra.gov.uk/environment/policy/permits/guidance.htm#ep
87
64
Annex 1: Connections with other legislation
A.1.1 Regulated facilities will need to comply with other pieces of environmental
legislation. Some of this legislation should be addressed by the environmental
permits (through permit conditions and/or the decisions of the regulator) and other
legislation is in addition to the environmental permitting regime. This Annex
explains the main connections between the environmental permitting regime and
legislation relating to: the regulators (paragraph A.1.2); other relevant regimes
(paragraphs 0 to A.1.15) and permitting considerations (paragraphs 0 to 0), but it
should not be regarded as covering all possible environmental legislation applicable
in individual cases.
Regulators
Environment Agency
A.1.2 The Environment Act 1995 contains the legislation establishing the Environment
Agency and conferring upon it various duties and powers. Sections of the Act
notable in relation to environmental permitting are:
- Section 4, stating the principal aim and objectives of the Environment
Agency in terms of environment protection and contributing to sustainable
development 88
- Section 39, giving the Environment Agency the general duty to have regard
to costs and benefits in exercising its powers
- Sections 41 to 43 concerning financial charging, and
- Sections 108 to 112, relevant to enforcement and prosecution.
A.1.3 The Natural Resources Body For Wales (Establishment) Order 2012 established a
new statutory body, the Natural Resources Body for Wales, and provided for its
purpose, membership, procedure, financial governance and initial functions. The
Natural Resources Body for Wales (Functions) Order 2013 makes further provision
about the Body, including provision about the modification and transfer of
environmental functions to the Body.
Other Relevant Regimes
Contaminated Land
A.1.4 The local authority is responsible for the determination of ‘contaminated land’ under
Part 2A of the EPA 1990 (Part 2A) 89 .
88
Statutory guidance from Ministers to the Environment Agency under section 4 of the Environment Act 1995
was published most recently in December 2002 and is available at
http://archive.defra.gov.uk/corporate/about/partners/ea/sustainable.htm#ep
89
Statutory guidance on Contaminated Land is available at
www.defra.gov.uk/environment/quality/land/contaminated/index.htm
65
A.1.5 The local authority with a regulated facility in its area will receive a copy of the
permit application for that facility, either as the regulator or as a public consultee.
The information in the application may suggest to the local authority that the site
might meet the statutory definition of ‘contaminated land’ under Part 2A and that
further investigation is necessary to establish if this is the case.
A.1.6 If an operator believes that a site may meet the statutory definition of ‘contaminated
land’, it may wish to discuss this with the local authority.
A.1.7 If the regulator finds that the site of the regulated facility is polluted as a result of the
regulated activities, it cannot seek remedial action under Part 2A if enforcement
action under the Environmental Permitting Regulations is possible.
A.1.8 After an environmental permit has been surrendered the regulator may consider
further remediation under Part 2A. The environmental permitting regime’s
requirements for site restoration will usually be of a higher standard than that
required under Part 2A. However, if the site is polluted with material from operations
pre-dating the reference point for contamination, then remediation under the Part
2A regime is possible.
A.1.9 In 2006, the Part 2A regime was extended to include non- nuclear radioactive
contaminated land in England and Wales and a further modification came into force
in December 2007. This extended the regime to apply to radioactivity originating
from nuclear licensed sites. However, it does not apply to land contaminated with
radioactivity on nuclear licensed sites. The ONR has powers under the NIA65 to
regulate land contaminated with radioactivity within the boundaries of nuclear
licensed sites.
Control of Major Accident Hazards
A.1.10 The Control of Major Accident Hazards (COMAH) Regulations 1999 90 as amended
in 2005 implement Directive 96/82/EC and 2003/105/EC on the control of major
accident hazards involving dangerous substances. The COMAH Regulations aim to
prevent major accidents and limit their consequences for people and the
environment. They set out measures which apply to establishments that hold or use
specified dangerous substances, or specified generic classes of dangerous
substances above qualifying quantities listed in the Directive. The competent
authority for the purposes of the COMAH Regulations in England and Wales is the
Health and Safety Executive and the Environment Agency acting jointly.
A.1.11 The Control of Major Accident Hazards Regulations, amongst other things:
90
•
impose a duty on the operator of an establishment to take all measures
necessary to prevent major accidents and limit their consequences for
persons and the environment
•
require the operator to prepare an on-site emergency plan for specified
purposes and containing specified information
SI 1999 No. 743.
66
•
require the operator to demonstrate to the competent authority that he has
taken all measures necessary to comply with the Control of Major Accident
Hazards Regulations, and
•
require the operator to notify major accidents to the competent authority.
Greenhouse gas emission trading
A.1.12 The Greenhouse Gas Emissions Trading Scheme Regulations 2003 91 provide the
framework for a greenhouse gas emissions trading scheme for the purpose of
implementing Directive 2003/87/EC establishing a scheme for greenhouse gas
emission allowance trading within the European Union. These Regulations control
emissions of carbon dioxide from any of the activities listed in Schedule 1.
Groundwater Directive
A.1.13 The Groundwater Directive 2006/118/EC (Groundwater Daughter Directive)
requires the setting of criteria for assessing groundwater chemical status of
groundwater bodies including the establishment of threshold values; procedure for
assessing chemical status of groundwater bodies; and identification of significant
and sustained upward trends of pollutants. It is thus mainly concerned with the
classification of groundwater bodies. However it also requires measures to prevent
or limit the input of pollutants to groundwater. The Environmental Permitting
Regulations are one of the mechanisms for meeting the requirements for such
measures.
Health and Safety
A.1.14 The Health and Safety at Work Act 1974 provides the foundations for the protection
of the workforce and the general public from health and safety hazards which
industrial facilities variously present. The Health and Safety Executive and local
authorities enforce those safety requirements. Regulators should take those
requirements into account when setting permit conditions, and both parties should
in particular ensure that environmental permitting and Health and Safety
requirements do not impose conflicting obligations.
A.1.15 There is Health and Safety Legislation directly relevant to some mining waste
operations, for example the Quarries Regulations 1999.
A.1.16 Specific guidance on interfaces with HSE and the ONR in relation to radioactive
substances activities is contained in the Guidance on Radioactive Substances
Activities.
Land Use Planning
A.1.17 The relationship between pollution control and planning is set out in PPS23 and
PPS 10 and TAN21 for Wales. An additional clarification of the relationship has
been made within the Waste (England and Wales) Regulations 2011, in that
nuisances and hazards arising from traffic beyond the site of a landfill or other
waste operation are no longer matters which the regulator is required to consider as
91
SI 2003 No. 3311.
67
part of its permitting functions. These matters now fall solely to the local planning
authority.
A.1.18 The Major Accident Off-Site Emergency Plan (management of waste from
extractive industries) (England and Wales) Regulations 2009 92 designate the
appropriate emergency planning authority in respect of a Category A mining waste
facility. That authority must draw up a plan which specifies the measures to be
taken off-site in the event of a major accident and which meets the objectives set
out in the Regulations.
Statutory nuisance
A.1.19 Part III of the Environmental Protection Act 1990 is concerned with ‘statutory
nuisances’ and is regulated by local authorities. Unless the Secretary of State or
Welsh Ministers have granted consent, a local authority may not begin summary
proceedings in respect of a statutory nuisance where proceedings which would
address the nuisance can be brought under the environmental permitting regime
(including exempt waste operations). Environmental permits relating only to
radioactive substances activities or stand-alone water or stand-alone groundwater
activities will not address nuisance. The term ‘summary proceedings’ has been
found to mean court proceedings for failure to comply with an abatement notice,
rather than the service of an abatement notice itself. The requirement for consent
prior to such action is to avoid ‘double jeopardy’ for operators. However, court
proceedings in relation to activities that are not covered by the environmental
permitting regime, (even though they are on the sites of regulated or exempt
facilities), may be taken under the statutory nuisance provisions without Secretary
of State or Welsh Ministers consent. The provisions do not stop members of the
public bringing private prosecutions under Section 82 of the EPA 1990. For Part B
installations reference should be made to the local authority Manual.
Permitting Considerations 93
Air quality strategy
A.1.20 Part IV of the Environment Act 1995 concerns air quality. Section 80 requires the
Secretary of State to prepare a national air quality strategy, and Section 81 requires
the Environment Agency to have regard to that strategy when discharging its
pollution control functions.
Conservation
A.1.21 The Conservation (Habitats & Species) Regulations 2010 94 implement Directive
92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the
Habitats Directive). They require sites which are important for either habitats or
species (listed in Annexes I and II of the Habitats Directive respectively) to be
designated as Special Areas of Conservation (SACs). These sites and Special
Protection Areas (SPAs) classified under Council Directive 79/409/EEC on the
92
SI 2009 No 1927
In relation to Part B facilities, the permitting considerations only apply insofar as they relate to the control of
air emissions
94
SI 1994 No. 2716
93
68
Conservation of Wild Birds (the Birds Directive) form a network termed Natura
2000.
A.1.22 The Habitats Directive requires member states to take measures to maintain or
restore the relevant natural habitats and wild species at a favourable conservation
status. Accordingly, the Habitats Regulations provide that, when determining an
environmental permit application which is likely to have a significant effect on a
European site, either alone or in combination with other plans or projects, the
regulator must carry out an appropriate assessment of the implications for the site
in view of that site’s conservation objectives.
A.1.23 These assessments should ascertain whether or not an application will have an
adverse effect on the integrity of the site interest features. The assessment may
therefore cause the permit application to be rejected, or to be granted subject to
stringent conditions to protect the designated site.
A.1.24 In carrying out the appropriate assessment, the regulator must consult the relevant
statutory nature conservation body and have regard to any representation made by
them. The Environment Agency will carry out this consultation in accordance with
its public participation statement (see chapter 10).
A.1.25 Part II of The Wildlife and Countryside Act 1981, as amended, provides protection
to Sites of Special Scientific Interest (SSSIs) in England and Wales. The includes
provisions which apply to owners and occupiers who wish to undertake notified
operations likely to damage the special interest of the site, but more important in
this context are the requirements that apply to public bodies such as local
authorities and the Environment Agency. Section 28G places a duty on such bodies
to take reasonable steps, consistent with the proper exercise of the authorities’
functions, to further the conservation and enhancement of special interest features
of SSSIs. The Act also requires that they consult statutory nature conservation
bodies before permitting (Section 28I) any operation likely to damage a SSSI (see
chapter 10 on Public Participation).
A.1.26 The environmental permitting regulator has a duty to have regard to the purpose of
conserving biodiversity in the exercise of its functions. This duty is provided by
Section 40 of the Natural Environment and Rural Communities Act 2006 which
extends the pre-existing duty on Ministers of the Crown, government departments
and the Welsh Government to all public authorities (this replaces Section 74(1) of
the Countryside and Rights of Way Act 2000).
Water Framework Directive
A.1.27 The Water Environment (Water Framework Directive) Regulations 2003 95 make
provision for the purpose of implementing in river basin districts within England and
Wales Directive 2000/60/EC establishing a framework for Community action in the
field of water policy. They require a planning process to be established to manage,
protect and improve the quality of water resources. The Environment Agency is the
competent authority and is to prepare river basin management plans for Secretary
of State and the Welsh Ministers’ approval. The plans are to set environmental
objectives and to set out programmes of measures to fulfil the plans.
95
SI 2003 No. 3242.
69
A.1.28 The first cycle of Plans were produced, approved and published in December 2009,
and the programmes of measures have to be made operational by December 2012,
to meet the objectives identified in the Plan by December 2015. All Protected Areas
have to meet their objectives by then. A second Plan and programmes of measures
are required for the following six years, and a third one for the six years thereafter.
Along with other public bodies, the Agency is required to have regard to river basin
management plans and to any supplementary plans in exercising their functions in
relation to river basin districts. Their preparation and execution may influence
regulation of activities under environmental permitting although it is too early to
determine those influences. Further information about the implementation of the
Water Framework Directive is available on the Defra web site 96 .
The Freshwater Fish Directive
97
A.1.29 The aim of the Freshwater Fish Directive is to protect or improve the quality of
running or standing fresh waters which support, or could become capable of
supporting particular species of fish. The Directive affects any discharges into and
impacts on designated waters, including from industrial and urban waste water
treatment plants, by laying down water quality requirements.
A.1.30 This Directive has been transposed via Surface Waters (Fishlife) (Classification)
Regulations and Directions 1997 which established water quality objectives for
those fresh waters supporting fish species. The Environment Agency must ensure
so far as is practicable by the exercise of its powers including its permitting powers
under the Environmental Permitting Regulations 2010 that water quality objectives
are achieved at all times.
The Bathing Waters Directive
98
A.1.31 This Directive aims to protect designated bathing waters from faecal pollution, in
order to protect human health and the environment. It therefore affects any
discharges from urban waste water treatment works, as well as some other types of
business and industry, that may impact on the quality of the bathing waters.
A.1.32 This Directive has been transposed via Bathing Waters Regulations 2008 and by
the Bathing Waters (Classification) Regulations 1991 which established water
quality objectives for designated bathing waters. The Environment Agency must
ensure so far as is practicable by the exercise of its powers including its permitting
powers under the Environmental Permitting Regulations 2010 that water quality
objectives are achieved at all times.
The Shellfish Waters Directive
A.1.33 This Directive aims to protect or improve shellfish waters in order to support
shellfish life and growth and thus to improve the high quality of shellfish products for
consumption. It affects any discharges to designated waters as well as any that
96
At www.defra.gov.uk/environment/policy/permits/index.htm
70
impact on these waters, including those from urban waste water treatment plants
and industry, by laying down water quality requirements.
A.1.34 This Directive has been transposed via Surface Waters (Shellfish) (Classification)
Regulations and Directions 1997 which establishes water quality objectives for
designated shellfish waters. The Environment Agency must ensure so far as is
practicable by the exercise of its powers including its permitting powers under the
Environmental Permitting Regulations 2010 that water quality objectives are
achieved at all times.
The Dangerous Substances Directive
99
A.1.35 This Directive, with its ‘daughter Directives’, aims to eliminate particularly toxic
substances and to reduce pollution from other less severely toxic substances. For
any discharges to inland, coastal and territorial surface waters, it is necessary to
obtain prior authorisation if the discharge is likely to contain dangerous substances.
A.1.36 This Directive has been transposed via Surface Waters (Dangerous Substances)
(Classification) Regulations 1989, 1992, 1997 and 1998 which establishes water
quality objectives for inland freshwaters and coastal waters. The Environment
Agency must ensure so far as is practicable by the exercise of its powers including
its permitting powers under the Environmental Permitting Regulations 2010 that
water quality objectives are achieved at all times.
The Urban Waste Water Treatment Directive
100
A.1.37 This Directive aims to protect the environment from the adverse effects of the
collection, treatment and discharge of urban waste water. The Directive covers
statutory water and sewerage companies, since they own and operate the public
sewerage system and the urban waste water treatment works. Discharges from
certain industrial sectors such as food and drink processing plants can have a
similar polluting effect to untreated sewage, so some of these are also covered by
the Directive.
A.1.38 This Directive has been transposed by Urban Waste Water Treatment (England
and Wales) Regulations 1994 which impose a duty on the Environment Agency to
reflect the requirements of the Regulations in any permits they grant.
A.1.39 A permit must be obtained for any discharge to water that is covered by any of the
above Directives. This is so that the regulator can limit the potential for pollution in
the receiving waters and ensure the waters meet the objectives set by the
legislation, thereby protecting the environment and human health.
71
Annex 2: Summary of the requirements for
different activities, installations and
operations
Requirements
Installation
Mobile
plant and
RSR
equivalent
Stand
alone
waste
operation
Mining
Waste
operation
RAS activity
Stand
alone
water
discharge
activity
Stand alone
groundwater
activity
but not for
existing
permits
but not for
existing
permits
but not for
existing
permits
except for
SFs
except for
SFs
except for
SFs
Waste
mobile
plant only
R5 Capable of
being an
exempt facility
R8(4)
Capable of
being carried
on as part of
another RF
R14
Site plan in
permit
required
R17 Single
site permit
possible
R17 Multi site
permit
possible
101
except for
SFs 101
except for
SFs
except for
SFs
SF stands for ‘Standard Facility’
72
Site
remediation
required on
cessation of
operations =
R20(3) (can`t
reduce site by
variation i.e
must
surrender); R
24 (must apply
to surrender,
not notify); and
R 23
(revocation
notice may
require
remediation)
102
R 20(4)
Regulator
initiated
variation
possible
without 4 year
constraint
R 21(3)
Transfer by
notification
possible
R31(10)
Power to make
revocation
effective
despite appeal
R31(11)
regulator
initiated
variation
effective
pending
appeal without
notice
102
Except for mobile radioactive apparatus
73
R 33 Direction
to transfer
regulation to
LA possible
R 71
Groundwater
review
required by
2012
not in
relation to
MRA
for existing
groundwater
activity
for existing
groundwat
er activity
for existing
groundwater
activity
for existing
groundwater
activity
unless an
SF
unless an SF
Permit
survives death
of sole
operator
Regs apply to
the Crown
Sch 5, para 5
Public
participation
applies
Sch 5, para
14, Specified
standard of
remediation on
surrender
applies
Sch 5, para 15
Determination
period applies
to applications
unless SF
unless an
art 7
mining
waste
facility
unless an SF
unless RAS
activity on
nuclear site
unless Ras
activity on
nuclear site
74
75